Concluding Workshop of the 4th EAPIL Young Research Network Project – Report
On 21 November 2024, the concluding workshop of the fourth project of the EAPIL Young Research Network on Recognition of Non-EU Judgments in the EU Member States took place. The workshop was hosted by the Permanent Bureau of the Hague Conference on Private International Law (HCCH) in collaboration with the Center for International Legal Cooperation (CILC) Project Balkan Enforcement Strengthening Project (BESp), funded by the Ministry of Foreign Affairs of the Netherlands and implemented by the CILC. The event was also supported by the European Association of Private International Law (EAPIL).
The fourth project of the EAPIL Young Research Network, coordinated by Tobias Lutzi (University of Augsburg), Ennio Piovesani (Ferretti Firm) and Dora Zgrabljić Rotar (University of Zagreb), focuses on the domestic rules of the EU Member States governing the recognition and enforcement of non-EU judgments in civil and commercial matters.
The concluding workshop marked a significant moment of discussion and exchange on this critical topic in private international law, fostering collaboration among young researchers, practitioners and senior legal experts.
Below is a report of the event.
Welcome
The workshop began with the welcome from Christophe Bernasconi (Secretary General, HCCH) and Gérardine Goh Escolar (Deputy Secretary General, HCCH). Their introductory remarks set a collegial and engaging tone for the event. Joining them were Melissa Ford (Secretary, HCCH) and Ning Zhao (Principal Legal Officer, HCCH), who also contributed to the opening session and actively supported the proceedings throughout the day. All participants were then given the opportunity to introduce themselves individually.
Presentation of the Comparative Report
The coordinators of the fourth project of the EAPIL Young Research Network commenced the workshop proceedings.
Tobias Lutzi (University of Augsburg) began by outlining the project’s timeline. The initiative started in early 2023, with a call for participation launched in March 2023. This process resulted in the selection of 31 reporters covering 21 EU Member States. Geographically, the project’s reach across Europe is extensive, as illustrated by a map shared during the presentation. Following the project launch, two workshops were held: the first focused on refining the questionnaire, and the second, a hybrid event, online and at the University of Turin, aimed at a preliminary comparative assessment. Over the summer of 2024, the reports underwent review and editing, and the publication of a volume containing both the country reports and a comparative analysis is expected in early 2025.
Tobias Lutzi also presented the structure of the questionnaire used in the project, detailing the adjustments made to it over time as the work progressed.
He then presented a selection of insights from the Comparative Report, that the three project chairs have been drafting on the basis of the national reports. In terms of general observations, the discussion highlighted significant differences between EU Member States legislations. Some have codified rules on the recognition and enforcement of non-EU judgments as part of private international law or civil procedural law, while others rely primarily on case law. The approach to recognition is similarly varied: in some Member States, recognition is always informal; in others, it is generally informal but becomes formal upon application or for specific types of judgments; for a few, recognition is always formal. Enforcement also diverges between systems, depending on whether it concerns foreign judgments requiring a declaration of enforceability through exequatur proceedings or domestic confirmation judgments based on the judgment debt.
Ennio Piovesani (Ferretti Firm) then delved into some more specific aspects, particularly the requirements, i.e. grounds for recognition and refusal, using a comparative table to illustrate the findings. A graphical comparison revealed how the distinction between positive and negative requirements influences the allocation of the burden of proof and the court’s power or duty to review matters on its own motion.
Some specific requirements were examined in greater detail, as they were recurring themes during the workshop. These included the (so-called indirect) jurisdiction of the court of origin and the requirement of reciprocity. Additionally, some other supplementary requirements were briefly touched upon.
Panel 1: The Assessment of (Indirect) Jurisdiction of the Court of Origin
The first panel featured the contributions from Tess Bens (University of Vienna), Birgit van Houtert (Maastricht University), Dafina Sarbinova (Sofia University “St. Kliment Ohridski”) and Erik Sinander (University of Stockholm).
Tess Bens and Birgit van Houtert, serving as national reporters for the Netherlands, alternated in presenting their analysis. They began by examining Article 431 of the Dutch Code of Civil Procedure and the landmark referral to the Dutch Supreme Court in 2014, which established four exhaustive national-autonomous requirements for recognition in the Gazprombank case. Among these requirements, one stipulates that a foreign judgment can, in principle, be recognized in the Netherlands if the court of origin’s jurisdiction is based on an internationally accepted ground of jurisdiction. Their discussion delved into relevant case law addressing the concept of ‘international jurisdiction’ of the court of origin and explored the legal instruments from which such guidance can be derived. This led to an analysis of the possible grounds for jurisdiction that may qualify as internationally accepted, including party autonomy whereby the court of origin’s jurisdiction stems from a choice-of-court agreement between the parties. The reporters emphasized the advantages of a case-by-case assessment over internationally accepted ground of jurisdiction, which allows flexibility to adapt to international developments and draw inspiration from various sources.
Dafina Sarbinova, national reporter for Bulgaria, followed with an overview of the complex legal framework governing recognition and enforcement in Bulgaria. This framework includes international treaties both multilateral, sector-specific conventions and bilateral agreements, particularly those predating Bulgaria’s accession to the European Union that remain relevant for non-EU judgments. Additionally, domestic laws play a role, including lex specialis, the 2005 Private International Law Code (PILC) and the Civil Procedure Code. Among the requirements for recognition under Article 117 of the PILC is the indirect jurisdiction of the foreign court of origin. Dafina Sarbinova highlighted Bulgaria’s adoption of the mirror-image approach, which requires the assessment to be conducted from the perspective of foreign court as to whether they would be granted jurisdiction under Bulgarian legislation if they were presented with the same facts to the case. Exceptions have been provided, specifically in the cases of exclusive and exorbitant jurisdiction.
Erik Sinander, national reporter for Sweden, concluded the panel. He explained that Swedish private international law generally adopts a restrictive approach toward the recognition and enforcement of foreign judgments in civil and commercial matters. Chapter 3, Section 2 of the Swedish Enforcement Code stipulates that enforcement based on a foreign judgment requires explicit legal provisions, reflecting Sweden’s cautious stance. While the provision only mentions enforcement, it is widely understood to apply equally to recognition. Within this framework, Erik Sinander underscored the significance of the jurisdiction of the court of origin. In Sweden, foreign judgments are only recognized and enforced if issued by a court exclusively prorogated (forum prorogatum). He explored case law from the Swedish Supreme Court regarding the forum prorogatum exception and its non-extension to other jurisdiction grounds.
Following the presentations, the session transitioned into a discussion, which included inputs from national ‘champions’ representing the Western Balkans countries. The debate expanded beyond the national rules on the recognition and enforcement of non-EU judgments, the core of the project, exploring parallels between these rules and the regimes established by bilateral and multilateral treaties. A key observation was that national provisions and treaty regimes may offer more favourable circulation conditions for judgments than those under the HCCH 2019 Judgments Convention.
The discussion focused on the theme of flexibility, particularly the ability of parties seeking recognition and enforcement to decide on the best circulation regime. It was noted that the HCCH 2019 Judgments Convention explicitly embraces such flexibility through Article 23, which addresses its relationship with other international instruments and reflects a cooperative stance toward bilateral and multilateral treaties. To illustrate this point, participants compared the requirements for recognition and enforcement under the HCCH 2019 Judgments Convention with those in other treaties, especially bilateral ones. A shared reflection emerged that the HCCH 2019 Judgments Convention establishes a minimum framework, not a maximum one, providing a foundational regime while allowing for more generous alternatives where available.
Panel 2: The Requirement of Reciprocity: Application and Relevance
The second panel featured the contributions from Leon Theimer (Humboldt University Berlin), Ramona Cirlig (RC International Disputes) and Paul Eichmüller (University of Vienna).
Leon Theimer, national reporter for Germany, presented an overview outlining that recognition and enforcement of foreign judgments in Germany generally depend on reciprocity. Pursuant to Section 328(1) no 5 of the German Code of Civil Procedure, recognition shall be ruled out if ‘[r]eciprocity has not been granted’. With some exceptions, this means that foreign judgments are typically recognized only if the country of origin reciprocally recognizes German judgments. While formal confirmation or guarantees of reciprocity are not necessary, Leon Theimer elaborated on the different types of reciprocity in German practice: substantive, partial and factual. The underlying purpose of this requirement is to encourage foreign countries to adopt recognition-friendly practices toward Germany by pre-emptively sanctioning the non-recognition of German judgments. However, the reciprocity requirement has not escaped criticism. These critiques go beyond questioning its historical origins as an outdated standard; they extend to its scope, its implications, and its overall effectiveness. Despite this, there are no current plans by the German legislator to abolish the requirement.
Ramona Cirlig, national reporter for Romania, explored the reciprocity requirement in Romania. She highlighted a contradiction: while considered irrelevant, the functional study conducted for the purposes of this project revealed its significance as a condition required by law and applied by Romanian courts. Article 1096(1)(c) of the Romanian Code of Civil Procedure mandates reciprocity of effects for non-EU judgments between Romania and the State of origin. It is generally accepted that factual reciprocity suffices, without the need for an exact match of requirements. Moreover, reciprocity is presumed unless proven otherwise, as outlined in Article 2561 of the Romanian Civil Code. Ramona Cirlig referred to a 2023 case involving a judgment from Belarus, where the burden of proof concerning reciprocity led the Bucharest Court of Appeal and subsequently the Court of Cassation to issue relevant rulings on the point. Additionally, references were made to decisions by the Romanian Constitutional Court, which examined the reasonableness of this requirement.
Paul Eichmüller, national reporter for Austria, concluded by detailing Austria’s stringent approach to reciprocity. He explained that reciprocity is one of the most restrictive and prominent requirements for the enforcement of foreign judgments in Austria. Despite long-standing criticism from legal scholars, this requirement has endured through numerous legislative amendments and remains in force. In Austria, reciprocity is interpreted in a particularly strict manner: enforcement demands not only substantive reciprocity but also formal reciprocity. What sets Austria apart is the necessity of proving reciprocity through legislative or diplomatic acts. Section 406 of the Austrian Execution Act stipulates that enforcement requires either an international treaty or an Austrian ordinance (Verordnung). Paul Eichmüller noted the challenges posed by the reciprocity requirement and emphasized that political consensus for abolishing the reciprocity criterion has yet to be reached.
The panel concluded with another round of discussions, which included a closer examination of the case law presented, including constitutional decisions. The debate centred on identifying the reasons why various legislators across EU Member States continue to uphold this requirement. Despite its contentious nature, the reciprocity criterion remains a fixture in the legal frameworks of several EU countries.
Panel discussion on Policy Implications
The panel discussion on policy implications featured the contributions from Tena Hoško (University of Zagreb), Ilija Rumenov (Ss. Cyril and Methodius University), Donikë Qerimi (University of Prishtina, Kosovo) and Melissa Ford (Secretary, HCCH).
Tena Hoško explored the perspective and the potential role of the European Union in shaping a harmonized circulation regime for non-EU judgments in EU Member States. She began by examining the EU’s competences to legislate in this area, focusing on how potential EU rules might relate to access to justice and the internal market. Beyond the legal basis, Tena Hoško analysed the practicality and desirability of such an initiative, highlighting the (unclear) benefits of pursuing this approach. She noted the existence of multiple overlapping regimes: national rules, the HCCH 2019 Judgments Convention, bilateral treaties, and, at the core, the Brussels I bis Regulation. A potential EU intervention replacing national regimes could promote a high level of uniformity, particularly at EU level under the interpretative guidance of the European Court of Justice. However, she also observed that several legal issues are already influenced by the Brussels I bis regime in current national frameworks. Any action in this field would also need to account for sector-specific circulation regimes and, finally, for the wider implications.
Ilija Rumenov shifted the discussion to philosophical considerations, offering a functional perspective on the dual role of such rules: facilitating the outbound recognition of domestic judgments and the inbound acceptance of foreign ones. Donikë Qerimi added a policy-making dimension, emphasizing the importance of considering third States to foster mutual cooperation on a global scale.
Melissa Ford highlighted the significant divergences in recognition and enforcement even within a region with shared legal traditions. She pointed out that the HCCH 2019 Judgments Convention serves as a baseline, established through broad consensus to encourage widespread participation. Its multilateral nature makes it a cost-effective and predictable tool for practitioners, offering a global framework for recognition and enforcement. Melissa Ford described the Convention as a pragmatic solution with a strong focus on clarity and simplicity, balancing broad applicability with manageable complexity.
A final discussion encouraged participants to contribute further reflections and insights.
The coordinators of the fourth project of the EAPIL Young Research Network then closed the workshop, which succeeded in offering both detailed analysis and a broader perspective. They expressed their gratitude to all those who contributed to making the event possible.
Further insights and details on the perspectives of other EU Member States covered by the project and the comparative analysis will most certainly be found in the forthcoming publication.