The Hague Academy’s Course on the Recognition and Enforcement of Judgments – Report
This post has been written by Bryan (H.B.) Verheul, PhD Candidate in Private International Law, Leiden University. He attended the Advanced Course in Hong Kong as a participant.
Between 2 and 6 December 2024, the second edition of The Hague Academy of International Law’s Advanced Course on Recognition and Enforcement of Judgments in Civil and Commercial Matters was held in the Hong Kong SAR.
Mirroring the success of last year’s edition, the Advanced Course was collaboratively organized by The Hague Academy of International Law (HAIL) and the Asian Academy of International Law (AAIL), with support from the Department of Justice of the Government of the Hong Kong Special Administrative Region and the Hong Kong International Legal Talent Training Academy.
Over the span of five days, distinguished experts delved into an comprehensive array of topics related to the recognition and enforcement of foreign judgments in civil and commercial matters, with an special emphasis on the HCCH 2019 Judgments Convention. The program attracted a broad audience, including judges, legal practitioners, researchers, academics, and government officials from all around the globe.
Kicking off the event on Monday morning, professor Jean-Marc Thouvenin, Secretary-General of The Hague Academy of International Law, and Lam Ting-kwok Paul, Secretary for Justice of the Hong Kong SAR Government, set the stage with their opening remarks. Following them, professor Teresa Cheng, former Secretary for Justice of the Hong Kong SAR and Founding Member and Co-Chairperson of the AAIL, captivated the audience with her lecture on the recognition and enforcement of foreign judgments in the Hong Kong SAR. Given that the Hong Kong SAR is a common law jurisdiction, she empathized the basics of common law recognition and enforcement, specifically highlighting the Hong Kong SAR’s approach. She also elaborated on the latest developments concerning the recognition and enforcement of judgments between the Hong Kong SAR and China Mainland.
The Monday afternoon was reserved for professor Pietro Franzina (Catholic University of the Sacred Heart, Milan) delving into Contemporary approaches of recognition and enforcement of foreign Judgments. He provided a comparative overview of different rules on recognition and enforcement of foreign judgements, with examples from both domestic legal systems as well as international treaties. Professor Franzina addressed several key questions regarding the recognition and enforcement of foreign judgments. He highlighted the fundamental difference between extending a foreign judgment to the legal order of the requested State and assimilating the foreign judgment to a judgment of the requested State. Additionally, he discussed the issue of reciprocity, res judicata, the recognition and enforcement procedure, the principle of exequatur-sur-exequatur-ne-veut (making subtle reference to the – rather infamous – CJEU decision in C-568/20, J v H Limited), as well as the grounds for refusal of recognition and enforcement of the foreign judgment.
Drawing on the diverse nature of the rules on recognition and enforcement in a global context, Franzina insightfully noted that treaties like the HCCH 2019 Judgments Convention do not establish enforcement rules per se, but rather set criteria for a judgment’s enforceability. In other words, the Convention establishes a minimum standard for the recognition and enforcement of foreign judgments, which must then be executed according to the domestic law of the Contracting State.
Building on his general remarks from Monday afternoon, Professor Franzina’s second lecture on Thursday morning tackled the challenges posed by the HCCH Judgments Convention 2019 regarding Preliminary Questions Outside the Scope and Judgments Consisting of Severable Parts. In the Convention’s general effort to enhance the effective circulation of judgments, Franzina stressed the importance of Article 9. This article ensures that a part of a judgment must be recognised in case the judgments debtor applies for only partial recognition and enforcement or when only part of the judgment is capable of being recognised and enforced under the Convention. Rather than a reason for the requested court to refuse the recognition and enforcement of the whole judgment under the Convention, this article must be seen as to ensure the enforceability of judgments is to the greatest extend possible. After all: “something is better than nothing”.
Professor Franzina further pointed out that the Convention, in Article 2(3), also provides for the recognition and enforcement of judgments that partially deal with preliminary matters falling outside the ratione materiae of the Convention (Article 1) or are explicitly excluded from its ratione materiae (Article 2), so-called “complex judgments.” The (implicit) presence of such preliminary issues does not preclude the applicability of the Convention, which again shows the Convention’s endeavor to ensure the circulation of judgments among Contracting States as much as possible.
The special attention of some of the participants was drawn to Article 10, which provides for the refusal for recognition or enforcement in case of exemplary (or punitive) damages. Franzina argued that the provision is meant to accommodate concerns that may arise both in civil law and in common law jurisdictions The latter, despite being generally familiar with the notion itself of punitive damages, may not be ready to enforce foreign judgments awarding such damages in all and any circumstances. Under Article 10, judgments awarding both compensatory and exemplary damages would be recognised and enforced to the extent that the damages are not regarded as excessive according to the court of the requested State.
On Tuesday, Professor Giuditta Cordero-Moss (University of Oslo) started the morning lecture on Public Policy as a Limitation to Enforcement and Recognition. Drawing on the HCCH 2019 Judgments Convention’s explanatory report (an important interpretative tool according to the Vienna Convention on the Law of Treaties) and insights from the public policy exception in commercial arbitration and international instruments in Private International Law, she elucidated how the public policy exception under the HCCH 2019 Judgments Convention should be understood both in its substance and in its relation to other grounds for refusal of recognition and enforcement under Article 7.
Regarding its substance, Professor Cordero-Moss reminded the audience of the exceptional nature of the public policy exception. Although invoking the public policy exception is not always unsuccessful (citing the recent CJEU decision in C-633/22, Real Madrid v. Le Monde among other cases), it must be applied only in exceptional cases where the recognition or enforcement of the foreign judgment would constitute a serious breach of a rule of law regarded as essential in the legal order of the requested state.
In her Wednesday afternoon lecture, Cordero-Moss addressed the relationship between the public policy exception and other grounds for refusal of recognition or enforcement under Article 7. She highlighted the international nature of the HCCH 2019 Judgments Convention, noting that Article 7(1) lit. (a) to (c) considerably overlap as they all pertain to procedural fairness. While in some jurisdictions a breach of procedural fairness is not deemed “manifestly contrary to public policy,” the Convention provides a more detailed list of refusal grounds to accommodate the globally divergent nature of the public policy exception.
On both Thursday afternoon and Friday morning Judge Shen Hongyu (Chief Judge of the fourth division of PCR’s Supreme People’s Court) elaborated on China’s Perspective on International Recognition and Enforcement. According to Article 289 of the PCR’s Code of Civil Procedure, foreign judgments can be recognised either under an international treaty (such as a bilateral judicial assistance treaties, these days mostly initiated in the context of the Blet and Road Initiative), or under the principle of reciprocity. The latter principle gained significant prominence following the 2006 decision by the Berlin Court of Appeal in decision in German Züblin International Co. Ltd v. Wuxi Walker General Engineering Rubber Co., Ltd, in which the Berlin court held that it was prudent for German courts to take the first step in establishing reciprocity in the hope that Chinese courts would follow. This “wake up call” from the German Court (as described by Shen) paved the way for a so called “presumed reciprocity” in the PCR: if there is no precedent for refusing recognition and enforcement of judgments from the state of origin, the Chinese court, as the requested court, would generally presume reciprocity.
Regarding China’s position on the ratification on both the HCCH 2005 Choice of Court Convention and the HCCH 2019 Judgments Convention, Shen pointed out that the PCR was involved in, and agreed to, the result of the negotiations of the HCCH 2019 Judgments Convention. The HCCH 2005 Choice of Court Convention is already signed by the PCR, but not yet ratified. Shen pointed out that the PCR is considering signing and ratifying the HCCH 2019 Judgments Convention, but only after it has opted for a definitive approach to the HCCH 2005 Choice of Court Convention. Judge Shen indicated that the PRC will only take a position on signing and ratifying the HCCH 2019 Judgments Convention after it has definitively determined its stance on the HCCH 2005 Choice of Court Convention.
Especially of interest for the diplomats in the audience was Shen’s elaboration on the new Chinese Law on Foreign State Immunity, that got into force on 1 September 2023. As Judge Sheng carefully explained, this new law shows China’s endeavors to open up to the world by adopting a less absolute approach to foreign State immunity before Chinese courts.
Wednesday morning and Friday morning, professor Matthias Weller (University of Bonn) delivered two lectures on the rather complicated and engaging subject of The Jurisdictional Filters under the HCCH 2019 Judgments Convention. Although the Convention (only) creates a minimum framework for recognition and enforcement of judgments among Contracting States, the Convention deals with what is called “indirect jurisdiction” for the purpose of recognition and enforcement. Rather than determining whether the court of origin had jurisdiction according to its own lex fori (compétence directe), the requested court reviews the jurisdiction of the court of origin in accordance with the “jurisdictional filters” of Articles 5 and 6 of the Convention (compétence indirect).
Weller looked at the phenomenon of jurisdictional filters – as he has done compellingly so on several previous occasions – through a more contemporary lens of Private International Law, namely that of “trust management”. He described the concept of indirect jurisdiction under the Convention as a form of intermediate trust: the convention prohibits révision au fond, but does allow for a review of jurisdiction of the court of origin in accordance with the jurisdictional filters set out in Arts. 5 and 6. Arts. 5 and 6 HCCH 2019 Judgments Convention are intended to filter out judgments based on unacceptable grounds of direct jurisdictions by the courts of the State of origin. The jurisdictional filter of Article 6 is mandatory in nature: a judgment ruling on rights in rem in immovable property shall be recognised and enforced if and only if the property is situated in the State or origin. As a personal note, the author of this blog post would like to point out that Article 6 might be a reason for the EU (e.g. as part of the upcoming reform of Brussels I bis) to assume reflex effect (effet réflex) of the exclusive jurisdiction rule of Article 24(1) Brussels I bis (see in that context also the currently pending CJEU case C-339/22, BSH Hausgeräte v. Electrolux).
Diving into the jurisdictional filters of the Convention, Weller distinguished five different groups of jurisdictional filters, relating to: 1. Personal connections of the defendant; 2. Forms of consent; 3. Connections of the subject matter; 4. Modifications for the protection of weaker parties; 5. Exclusive jurisdiction. To illustrate the challenges of each jurisdictional filter, the presentation incorporated brief hypothetical case scenarios and made use of comparative analyses, designed to spark active discussions among the participants. For instance, Weller examined the jurisdictional filter outlined in Article 5(1) lit. (f), which provides for appearance without contestation unless it is evident that contestation would be unsuccessful. Weller argued that this requirement has significant implications, as it necessitates the requested court to possess extensive knowledge of the lex fori of the court of origin. He referred to Article 333 of the French Code of Civil Procedure, which stipulates that a party joining an ongoing case does not have the opportunity to challenge the territorial jurisdiction of the court, even if a forum selection clause exists.
As an icing on the cake, the organization invited professor Matthias Lehmann (University of Vienna) to deliver a special lecture on Crypto Currency and International Law, on both Tuesday and Wednesday evening. Lehman managed to explain both the functioning of the blockchain underlying crypto assets (such as Bitcoin) as well as a new approach he proposes towards these assets in the field of international property law. The decentralized blockchain technology poses new questions to the more classical rules in international property law, as the decentralized blockchain technology is difficult to localise. Although some efforts have been made to unify the private law rules on crypto currencies (such as the UNIDROIT Principles on Digital Assets and Private Law 2023), binding global uniform rules for the blockchain are still a in utopia. Instead of referring to traditional concepts in private international law (e.g., lex rei sitae or lex registri), Lehmann proposes a different approach to crypto currencies in the international arena, namely relying on the blockchain as a uniform international rule of property law. One should ideally recognise the blockchain as an authentic register of private rights.
Concluding the lecture series, Teresa Cheng presented on Articles 22 and 25 of the HCCH Judgment Conventionwith a focus on the Mutual Arrangements between the Mainland and the Hong Kong SAR.
Cheng elaborated on the legal frameworks inspired by the HCCH Conventions, grounded in Article 95 of the Hong Kong SAR Basic Law. She also pointed out that the HCCH 2019 Judgments Convention was actually the basis for the negotiations on the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland end the Hong Kong SAR. She explained that Article 22 HCCH 2019 Judgments Convention, originally intended for federal states, also applies to the unique relationship between Mainland China and Hong Kong, described as by Cheng “one country, two systems”. Reflecting on the opening lecture from Monday morning, Cheng noted China’s unique bi-jural legal system, where Hong Kong’s common law coexists with Mainland China’s civil law. According to Cheng, this duality fosters legal innovations, such as Article 4 of the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters, which excludes anti-suit injunctions.
As the sun began to set on Friday afternoon, a sense of accomplishment filled the air. Participants, having navigated through a week of intellectually stimulating yet challenging sessions, gathered for the closing ceremony and received their certificates. With a backdrop of Hong Kong’s stunning Victoria Harbour, participants enjoyed an array of delicious food and refreshing drinks.