The judgments project: a review of the Hague Conference on Private International Law's work in progress.

Author:Kelleher, Guy
Position::Conference news
 
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I Introduction

  1. Defining the Judgments Project

    The 'Judgments Project' is an ambitious enterprise undertaken by The Hague Conference on Private International Law over the past two decades. It involves the strengthening of two key aspects of cross-border litigation in civil and commercial matters: the international jurisdiction of courts, and the recognition and enforcement of their judgments abroad. (1) The specific objectives of the Project consist of: (2)

    1. Ensuring that civil proceedings are heard in the appropriate forum, consistent with the fair and efficient determination of disputes;

    2. Reducing uncertainty in relation to the forums in which disputes will be heard and determined, and reducing the costs associated with disputes as to which forum litigation should be held in and;

    3. Facilitating the international enforcement of judgments rendered by an appropriate court, thus enhancing the certainty and finality of cross border litigation.

  2. Creating an International Framework for Private Law

    Broadly speaking, the raison d'etre of the Judgments Project is the facilitation and further integration of cross border private law, both in the ambit of civil matters and trade. The project seeks to achieve this integration through the development of a legal framework for private law litigation that is both global and consistent in its reach. This framework is built on multilateral conventions developed by The Hague Conference, to which sovereign states accede via domestic ratification. (3) The ultimate objective of this process is greater access to justice for international litigants, as well as an enhancement of the quality and consistency of justice in cross border litigation.

  3. Context of the Project

    The Judgments Project is an ongoing enterprise. Work on the recognition of the international jurisdiction of courts and the enforcement of foreign judgments has been central to the agenda of the Hague Conference for over twenty years. (4) The enduring presence of the project reflects the recurring regulatory challenges that arise under increasingly interconnected global conditions. The period over which the project has matured has itself seen continuous increases in cross border trade and the movement of people. In the sphere of litigation, these conditions mean that civil and commercial disputes increasingly stretch across the borders of sovereign states, penetrating a vast and diverse range of national legal jurisdictions. (5) Thus in many ways the project can be seen as a supranational attempt at bringing the integration of private international law up to speed with aspects of civil and commercial life that are already well and truly integrated at a global level.

  4. Scope of this Article

    This article is divided in to four parts.

    1 Background and Progress of the Judgments Project

    Part II begins by offering a brief history of the Judgments Project: from its origins, to the limited progress made in negotiations, and the compromised finalisation of the Hague Convention of 30 June 2005 on Choice of Court Agreements ('Choice of Court Convention'). (6) Through a discussion of the features of the Choice of Court Convention, as well as its restricted application and slow adoption globally, this part will suggest that the project remains very much a work in progress, with various factors impeding its growth. These factors are canvassed in parts III and IV, where attention is drawn to the potential barriers faced by the Judgments Project as it attempts to expand its influence internationally.

    2 Relationship with Arbitration in Cross Border Disputes

    Part III of this article identifies one of the major barriers to the expansion of the Judgments Project; the unrivalled dominance of arbitration within the sphere of private international dispute resolution. This dominance, it submits, is largely due to the ubiquitous adoption of the New York Arbitration Convention (1958), (7) which has seen arbitral awards granted under it almost unanimously enforceable at a global level. It suggests that the omnipresence of arbitration may also stem from a pervasive perception that it provides a more neutral form of cross border dispute resolution. Part III concludes by discussing the prospects for the Project of disseminating a model of litigation capable of complementing arbitration as a means of cross border dispute resolution. It closes by addressing some of the factors pushing for and against the further integration of litigation.

    3 Difficulties Reconciling Jurisdictional Approach

    Part IV identifies perhaps the most significant challenge faced by the Judgments Project: the significantly different approaches taken to forum and jurisdiction by the world's major legal systems. It suggests that, in particular with respect to common law and civil law nations, differences in approach are key to understanding the limited progress made by the project thus far. Among these differences, it identifies the field of specific jurisdiction as a particularly thorny area. The discussion reviews some of the recent legal developments to have occurred in two of the world's largest jurisdictions: the United States and the European Union, and finds that reconciliation of the field of specific jurisdiction is currently as challenging as ever. It concludes by offering some areas in which meaningful progress might be made by future conventions, and suggests that a proper treatment of the distinction between direct (adjudicative) jurisdiction and indirect (enforcement) jurisdiction may be crucial to the Judgment Project's advancement.

    4 Local Developments

    Part V concludes by offering a review of the recent progress made in Australia and New Zealand in the field of private international law: the Trans-Tasman Proceedings Regime. It provides a background for the regime, a discussion of what the two nations have sought to achieve by it, and its key features. It goes on to outline the jurisdictional approach adopted by the arrangement: in particular its treatment of forum non conveniens and choice of court agreements. Finally it highlights the regulatory environment that the regime seeks to create; why it has been largely successful so far, and its prospects moving forward.

    Taken as a whole, this article seeks to provide an overview of what is essentially an immense and complex project; one that involves widespread negotiations that result in infrequent developments on an international scale. As such, it surveys those developments, and does not delve in to current negotiations taking place between nations in light of the Judgements Project.

    II Trajectory of the Judgments Project

  5. History

    1 Historical Background

    The process of expanding the jurisdiction of particular courts in order to quell controversies between foreign parties is ancient, as is that of providing for the recognition and enforcement of foreign judgments. The roots of the common law itself are largely grounded in the mutual and expansive recognition of judgments throughout the Kingdom of England. (8) As English courts began to recognise and enforce one another's judgments throughout the twelfth century, so began the consolidation of precedent and the body of judgments known as the common law.

    More recently, this process has been at work throughout much of Australia's early legal history. In 1886 the Federal Council of Australasia attempted to forge a uniform scheme for adjudicative jurisdiction and the enforcement of judgments among the courts of the colonies of the South Pacific. (9) This provided the basis, upon federation, for the intra-Australian scheme between state courts, enshrined in the Service and Execution of Process Act 1902 (Cth). (10) Deference by local courts to the British Privy Council, as part of the British Empire, also saw the continued recognition of the jurisdiction (and the enforcement of the judgments) of an arguably foreign power, well in to the twentieth century. (11)

    In comparison, the history of the civil law systems of continental Europe entails a tradition of ius commune, the recognition and enforcement of which often transcended territorial jurisdiction. While this tradition was tempered by the rise of state sovereignty, rudimentary mechanisms could still be found in the wake of the Treaty of Westphalia for the mutual recognition and enforcement of foreign judgments between sovereign states. (12) In this sense the integration of private international law is not a particularly novel process. The scope of the contemporary project is, however, unprecedented, especially in its attempts to reconcile civil law and common law systems (discussed further in part IV).

    2 The Contemporary Project

    The first steps towards the contemporary process of international private law integration- the Judgments Project - were taken by the late Professor Arthur T von Mehren of Harvard Law School in the early 1990s. In the years following the dissolution of the Soviet Union, Von Mehren suggested that the United States enter in to judgment recognition agreements with other nations, in particular those of the nascent European Union. (13) The period following the Cold War saw a renewed optimism among many legal scholars as to the potential for further consolidation of the rules surrounding recognition and enforcement of foreign judgments among the world's legal systems. For many of von Mehren's contemporaries, these proposals represented a 'commitment to the principle that civil controversies that cannot be settled by negotiation or arbitration should be submitted to appropriate courts - but only once.' (14) This was seen to embody the notion '... that the world's democracies respect each other's judicial systems and have a shared perception of essential fairness.' (15)

    3 Negotiations

    Following initial diplomatic discussions, it was decided that the best way forward would be a global 'mixed' convention on both adjudicative jurisdiction and the enforcement of judgments, to be...

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