UK ratifies 2019 Hague Judgments Convention

On 27 June 2024, the United Kingdom ratified the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (“Hague 2019”). 

Hague 2019 establishes a common framework through which judgments of the courts of a Contracting State may be recognised and / or enforced in another Contracting State, subject to certain conditions and exclusions. Hague 2019 has already been ratified by the EU, Ukraine and Uruguay. In addition, it has been signed, but not ratified, by Costa Rica, Israel, Russia and the US. 

As an EU Member State prior to Brexit, the UK was a party to certain framework agreements relating to cross-border civil and judicial cooperation, such as the Recast Brussels Regulation and the Lugano Convention. When the UK left the EU in 2021, it automatically ceased to be a party to those agreements. Ratifying Hague 2019 represents a partial but significant return to mutual recognition and enforcement of judgments as between the UK and EU Member States. 

Hague 2019 will complement the Hague 2005 Convention on Choice of Court Agreements, which provides for recognition and enforcement in contracting states of judgments given by a court designated in an exclusive choice of court agreement. Hague 2019 expressly provides for the enforcement of agreements with non-exclusive choice of court clauses which are common in, for example, finance agreements. 

Hague 2019 will enter into force in the UK on 1 July 2025. However, it will only apply to judgments given in proceedings which commenced after Hague 2019 entered into force in both the UK and the enforcing or requesting state. For enforcement of UK judgments in the EU (and vice versa), therefore, the proceedings leading to the judgment must be commenced on or after 1 July 2025.

What is the scope of Hague 2019?

Hague 2019 allows for the recognition and enforcement in Contracting States of judgments in certain civil or commercial matters. 

Judgments within the applicable subject matters are defined widely as “any decision on the merits given by a court, whatever that decision may be called, including a decree or order, and a determination of costs or expenses of the proceedings by the court (including an officer of the court), provided that the determination relates to a decision on the merits which may be recognised or enforced under this Convention.” Recognition and enforcement are not available to judgments given in arbitration or related proceedings, or to any interim measures of protection, such as injunctive relief.

Hague 2019 expressly excludes certain types of matters. These include revenue, customs and administrative matters, as well as the status and legal capacity of natural persons, family law matters, insolvency, privacy, intellectual property, and certain anti-trust matters. 

Bases for recognition and enforcement

In order for a judgment to be eligible for recognition or enforcement under Hague 2019, it must meet one (or more) of the thirteen requirements listed at Article 5. A summary of these requirements is listed below. For convenience, below we have referred to the person against whom recognition or enforcement is sought as the “Adjudicated Person”.

1. The Adjudicated Person was habitually resident in the State where the judgment was made, when they became party to the proceedings;
2. The Adjudicated Person is a natural person whose principal place of business was in the State where the judgment was made when they became party to the proceedings (a “Party”) and the claim arose from the activities of the business;
3. The Adjudicated Person brought the claim (other than a Counterclaim) on which the judgment is based;
4. The defendant had a branch, agency or establishment, without any separate legal personality (an “Establishment”) in the State where the judgment was made at the time they became a Party, and the claim arose out of the activities of that Establishment; 
5. The defendant expressly consented to the jurisdiction of the court making judgment, in the course of the proceedings;
6. The defendant argued the merits of the case before the court making judgment without contesting jurisdiction in the relevant time limits, unless if it is evident that an objection to jurisdiction would not have succeeded under that law;
7. The judgment ruled on a contractual obligation and the court giving judgment was in the State in which performance of that obligation took place (or should have done) as per the agreement of the parties, or as per the law of the contract where no such agreement exists, unless the defendant’s activities did not constitute “a purposeful and substantial connection” to that State;
8. The judgment ruled on a tenancy over immovable property and was given by a court in the same State as the location of the property;
9. The judgment ruled against the defendant on a contractual obligation secured by a right “in rem” in immovable property located in the State making the judgment, and the contractual claim was brought together with a claim against the same defendant relating to that right “in rem”;
10. the judgment ruled on a non-contractual obligation arising from death, physical injury, damage to or loss of tangible property, and the act or omission directly causing that harm occurred in the State making the judgment, irrespective of where the harm occurred;
11. the judgment related to a trust created voluntarily and evidenced in writing, and either set out the court making judgment as that which was to determine disputes, or the State where the judgment was made was the State of the principal place of administration of the trust;
12. the judgment ruled on a counterclaim in favour of the counterclaimant, provided that the counterclaim arose out of the same transaction or occurrence as the claim, or where the judgment ruled against the counterclaimant, unless the law of the State making judgment required the counterclaim to be filed in order to avoid preclusion; or
13. the judgment was given by a court designated in a written, or otherwise recorded, agreement, other than an exclusive choice of court agreement.

Can recognition / enforcement be refused under Hague 2019?

Hague 2019 does not permit a requested state to review the merits of a judgment, but it may refuse to recognise or enforce a judgment on certain, limited grounds. This is a discretionary exercise, rather than a mandatory requirement. 

Recognition or enforcement may be refused where: 

1. the defendant wasn’t notified of the proceedings in sufficient time for them to arrange a defence (unless an appearance was entered and the defendant’s case presented without contesting this, assuming the law of that court permitted such contest), or where they were notified in a way incompatible with fundamental principles of service of the requested State;
2. the judgment was obtained by fraud;
3. recognition or enforcement would be manifestly incompatible with the public policy of the requested State, including situations where the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State and situations involving infringements of security or sovereignty of that State; 
4. the proceedings in the court making judgment were contrary to an agreement, or a designation in a trust instrument, under which the dispute in question was to be determined in a court of a State other than the State where the judgment was made;
5. the judgment is inconsistent with a judgment given by a court of the requested State in a dispute between the same parties; and/or
6. the judgment is inconsistent with an earlier judgment given by a court of another State between the same parties on the same subject matter, provided that the earlier judgment fulfils the conditions necessary for its recognition in the requested State.

Recognition or enforcement may also be refused if and to the extent that the judgment awards damages that do not compensate for actual loss or harm, such as exemplary or punitive damages.

Hague 2019 also provides for Contracting States to make declarations that they will may refuse to recognise or enforce a judgment in certain circumstances, including where a dispute appears to be purely domestic other than having been heard in the foreign court making the judgment, where there is a “strong interest” of the State not to do so, or where the State or a government agency are parties to the proceedings. 

Contracting States may opt out of application of Hague 2019 as between itself and any other Contracting State. It remains to be seen whether any Contracting States will exercise this opt-out right.

In addition, Contracting States with more than one “territorial unit” may declare that Hague 2019 will apply to only some of its territorial units. The UK, for example, has declared that Hague 2019 will only apply to England and Wales, although there is scope for this to be later modified.

The UK signed Hague 2019 on 12 January 2024 following a period of consultation in 2023 (see our previous post).