The HCCH Judgments Convention in Australian Law

DOI10.1177/0067205X19856503
Article
The HCCH Judgments
Convention in Australian Law
Michael Douglas,* Mary Keyes,**
Sarah McKibbin*** and Reid Mortensen
y
Abstract
In May 2018, the Hague Conference on Private International Law (‘HCCH’) produced a draft
convention for the recognition and enforcement of foreign judgments. A Diplomatic Session of the
HCCH is expected to take place in 2019 at which this draft ‘Judgments Convention’ will be
presented. If a multilateral convention emerges from the Diplomatic Session, Australia is likely to
be an early adopter: the Commonwealth Attorney-General’s Department conducted a public
consultation on the draft Judgments Convention in 2018. Against that background, this article
considers the impact of implementation of the Judgments Convention in Australia. It is argued that
domestic legislation that emerges from the Judgments Convention will deliver an overdue
refurbishment of the Australian law relating to the recognition and enforcement of foreign judg-
ments. Australia’s adoption of the Judgments Convention ought to be welcomed.
Introduction
A litigant’s objective when bringing civil proceedings is to obtain a judgment and to have it
satisfied. However, a national or state border can often frustrate that objective — either because
the resources needed to satisfy a money judgment are outside the territorial jurisdiction of the court
or, if the defendant has been ordered to do or not to do something, the defendant is beyond the
* Senior Lecturer in Law, U WA Law School, University of West ern Australia, Perth, Austral ia. The author may be
contacted at michael.c.douglas@uwa.edu.au.
** Professor of Law, Griffith Law School, Griffith University, Brisbane, Australia. The author may be contacted at m.keyes@
griffith.edu.au.
*** Lecturer in Law, School of Law and Justice, University of Southern Queensland, Toowoomba, Queensland, Australia.
The author may be contacted at sarah.mckibbin@usq.edu.au.
y
Professor of Law; Head, School of Law and Ju stice, University of Southern Queensland, Too woomba, Queensland,
Australia. The author may be contacted at reid.mortensen@usq.edu. au. The HCCH Convention on the Recognition
and Enforcement of Judgments in Civil and Commercial Matters, the proposed version of which is the subject of this
article, was concluded at the 22
nd
Diplomatic Session of the Hague Conference on Private International Law on 2 July 2019.
This article was accepted for publication in November 2018, well before the HCCH Judgments Convention was concluded,
and therefore the discussion in this article refers to the future possibility of its conclusion and to the proposed version of
the Convention. The major difference between the Convention as concluded, and the proposal discussed in this article, is
that the Convention as concluded does not address intellectual property matters. As at July 2019, the Convention is yet to
enter into force. The authors would like to thank the anonymous referees for their helpful comments. Any errors are ours.
Federal Law Review
2019, Vol. 47(3) 420–443
ªThe Author(s) 2019
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DOI: 10.1177/0067205X19856503
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territorial jurisdiction of the court. The law relating to the recognition and enforcement of cross-
border judgments is therefore an important means of enabling the civil justice system to achieve its
purpose, and so to help litigants enforce judgments awarded in other countries or states or enforce a
local judgment in another country or state.
The Hague Conference on Private International Law (‘HCCH’)
1
has been attempting to nego-
tiate multilateral arrangements for the recognition and enforcement of foreign judgments for a half-
century
2
but a broad-based convention has so far proven elusive. A Judgments Project was begun
in 1992 with the aim of concluding a convention that dealt with both the international adjudicative
and enforcement jurisdictions of courts.
3
It proved too ambitious and by the 2000s the HCCH had
lowered its sights. The first success was the 2005 Convention on Choice of Court Agreements,
which provided for the enforcement of judgments rendered when exercising jurisdiction under
exclusive choice of court agreements.
4
In 2012, the HCCH’s Council on General Affairs and
Policy agreed to resume a larger Judgments Project that, at the least, would deal with the transna-
tional recognition and enforcement of judgments. The Special Commission on the Judgments
Project produced a Judgments Convention in May 2018.
5
A Diplomatic Session of the HCCH is
expected to take place in 2019, at which the 2018 draft Judgments Convention will be presented.
Australia has been an active participant in these negotiations and so, in preparation for its involve-
ment in the Diplomatic Session, the Commonwealth Attorney-General’s Department conducted a
public consultation on the draft Judgments Convention in 2018.
6
If implemented, legislation that emerges from the Judgments Convention will deliver an over-
due refurbishment of the Australian law relating to the recognition and enforcement of foreign
judgments.
The law is, at present, strongly bifurcated. Although, on the one hand, there is a distinctive and
efficient model for the interstate and trans-Tasman enforcement of judgments within Australia and
New Zealand; on the other hand, judgments made in other countries are recognised and enforced
under conditions that are relatively unchanged since the late 19
th
century. Recognition and enforce-
ment of foreign judgments is occasionally pursued by litigation at common law but, even where
more efficient statutory processes of enforcement are available, the conditions of enforcement
largely parallel those of the common law. While the introduction of a scheme that gives effect to
the Judgments Convention would not simplify th e structure of the law in Australia, it would
introduce a scheme that is much better adapted to modern civil and commercial litigation than
the 19
th
-century structure is. The Judgments Convention would give successful litigants the ability
to enforce a larger range of foreign civil and commercial judgments in Australia. Even more
importantly, it would enable the projection of Australian judicial power into other countries
according to more contemporary standards. Similarly, the courts of foreign countries that are party
to the Convention would also improve their ability to project enforcement power into Australia to
the same extent. Although this would disadvantage some individual judgment creditors in Aus-
tralia, at a system level it still promotes Australia’s interests. The terms of international cooper-
ation necessarily demand reciprocity and the reciprocal enhancement of mechanisms for the
enforcement of foreign judgments across borders increases certainty for cross-border business and
reduces the risk of cross-border business activity.
In this article, we consider the impact of the implementation of the Judgments Convention in
Australia. Part II identifies issues with the current regime for the recognition and enforcement of
foreign judgments in Australia. Part III explains how the Judgments Project might address some
of those issues. It also provides further background to the Judgments Project, identifies the scope of
Douglas et al 421

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