CHAPTER 32: INTERNATIONAL CONVENTION ON RECOGNITION AND ENFORCEMENT

PRINCIPLES AND CASES IN PRIVATE INTERNATIONAL LAW:

A PROCEDURAL APPROACH

 

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MARK ANGELO S. DELA PEÑA


To cite this online book, please use the following:


Dela Peña. 2023. "Principles and Cases in Private International Law: A Procedural Approach." Published by Project Jurisprudence - Philippines. Published: September 17, 2023. Link: [Insert link] Last accessed: [Insert date of access].


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CHAPTER 32:
INTERNATIONAL CONVENTION ON
RECOGNITION AND ENFORCEMENT

 

            Although the Philippines is presently not a contracting party to the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters[1] the student of private international law will benefit most greatly from the study of its texts, especially because most, if not all, of its provisions are substantially recognized not only in this jurisdiction’s Rules of Court but also in jurisprudence.

 

            Increased cross-border dealings inevitably lead to the risk of more disputes involving foreign elements. Recognition and enforcement of foreign judgments has proven to be challenging, if not impossible. Diverse laws and practices around the globe have resulted in uncertainty and unpredictability as to whether and to what extent relief granted in one place can be obtained in another. This is often accompanied by expensive legal advice and added risks for the parties, hindering the flow of international trade and investment, and, ultimately, denying justice. A common framework for recognition and enforcement of foreign judgments at the international level is essential.[2]

 

            The Convention applies to the recognition and enforcement of judgments in civil or commercial

matters,[3] including consumer and individual employment contracts. The Convention excludes certain matters from its scope, such as the status and legal capacity of natural persons, family law matters, insolvency, privacy, intellectual property, and certain anti-trust matters.[4] In addition, it applies neither to arbitration and related proceedings,[5] nor interim measures of protection.[6] Contracting Parties may also declare that the Convention does not apply to other specific matters.[7]

 

            The Convention establishes a common framework under which judgments from one Contracting Party will be recognized and/or enforced in another if they are eligible for circulation and the grounds for refusal do not apply. The Convention provides a list of criteria to be used by the court addressed to ascertain whether the judgment is eligible for recognition and enforcement.[8] Therefore, the Convention does not provide rules of direct jurisdiction applicable in the court of origin or in the court addressed.[9]

 

            A judgment will be eligible for circulation[10] under the Convention if any of the criteria listed in Article 5 (1) are satisfied. An exclusive basis is provided in Article 6 for judgments ruled on rights in rem in immovable property, which would be eligible for circulation if, and only if, the immovable property is situated in the State of origin. These are minimum requirements for recognition and enforcement; that is, the Convention does not prevent or limit the recognition and enforcement of judgments under national law, bilateral, regional or other international instruments,[11] with the exception of Article 6. In this sense, the Convention provides a “floor” rather than a “ceiling” in the recognition and enforcement of foreign judgments.[12]

 

Recognition and enforcement can only be refused on the basis of the grounds listed in the Convention. These grounds for refusal are not mandatory, allowing the court addressed to exercise discretion on whether to refuse. The grounds listed in Article 7 are commonly accepted across jurisdictions, including public policy, due process, and inconsistent judgments.[13]

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[1] Entry into force: 1-IX-2023. Also known as the “Hague Judgments Convention.”

[2] The official Outline of the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.

[3] Article 1 of the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.

[4] Article 2 (1) of the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.

[5] Article 2 (3) of the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.

[6] Art. 3 (1) (b) of the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.

[7] Art. 18 (1) of the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.

[8] Sometimes referred to as “indirect grounds of jurisdiction.”

[9] The official Outline of the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.

[10] “Circulation” refers to the request or acceptance, or both, of a contracting states to recognize and enforce a foreign judgment or decision.

[11] Article 15 and 23 of the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.

[12] The official Outline of the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.

[13] The official Outline of the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.