News

The Wait is Over - the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, dated 2 July 2019 (‘Hague 2019’), comes into force today.

It establishes a consistent framework for the recognition and enforcement of civil and commercial judgments between the UK and other contracting states, including all EU member states except Denmark. Although the UK ratified the convention in June last year, Hague 2019 will only apply to English civil and commercial judgments where
proceedings are commenced on or after 1 July 2025.

Background

Following Brexit, the EU framework governing the recognition and enforcement of foreign judgments ceased to apply to the UK from 1 January 2021 (other than judgments in proceedings initiated in the UK before 31 December 2020). The ratification and forthcoming application of Hague 2019 marks a significant development, enabling certain English judgments to be enforced more easily abroad.

Since the UK’s departure from the EU, English judgments have only been enforceable:

(i) under the 2005 Hague Convention on Choice of Court Agreements (which came into force when the UK re-joined this convention on 1 January 2021 and applies only where there is an exclusive English jurisdiction clause); or

(ii) pursuant to reciprocal arrangements between the UK and the relevant state, or under that state’s domestic laws on the enforcement of foreign judgments (in the case of non-contractual disputes).

Importantly, Hague 2019 does not open the opportunity for cases to be re-litigated, but requires contracting states to recognise civil and commercial judgments given by the courts of a contracting state (the state in which the judgment originated) in another contracting state without there being a review of the merits of the judgment in
said state.

Trusts

Hague 2019 aims to facilitate the recognition and enforcement of judgments in civil and commercial matters across contracting states; however certain legal areas such as family law, intellectual property and insolvency are excluded.

At least one of a number of requirements must be met for a judgment to be eligible for enforcement under Hague 2019. These are set out in full in Article 5 of the convention. Article 5(1)(k) will be of particular note to our clients whereby a basis for recognition and enforcement is provided where:

“the judgment concerns the validity, construction, effects, administration or variation of a trust created voluntarily and evidenced in writing, and –

(i) at the time the proceedings were instituted, the State of origin was designated in the trust instrument as a State in the courts of which disputes about such matters are to be determined; or

(ii) at the time the proceedings were instituted, the State of origin was expressly or impliedly designated in the trust instrument as the State in which the principal place of administration of the trust is situated.”

Although note the above paragraph of Article 5 only applies to judgments regarding internal aspects of a trust between persons who are or were within the trust relationship.

Looking to the future

Hague 2019 was designed to provide a global framework of common rules to facilitate the recognition and enforcement of judgments from one jurisdiction to another. In addition to all EU member states (apart from Denmark) and the UK, Ukraine and Uruguay have also become contracting states to Hague 2019.

It is expected that more states will join in due course, widening the range of jurisdictions in which enforcement will be an option, so watch this space. The growing acceptance of the convention internationally will not only expand the ability for English judgments to be recognised abroad but also the predictability of the enforcement process as our joining of the convention will likely create a more effective, efficient and streamlined procedure for all contracting states. This will continue to reinforce the position of the English Courts as a leading forum for the resolution of cross-border disputes.