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On 27 June 2024, the UK government ratified the 2019 Hague Judgments Convention on the ‘Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters’ (the “Judgments Convention”). The Judgments Convention will enter into force in England and Wales on 1 July 2025 (it will not apply in Scotland and Northern Ireland).

The ratification represents a significant development for cross-jurisdictional litigation. The time and expense of enforcing English judgments abroad (or vice versa), for instance because a defendant has significant assets in a foreign jurisdiction, can be particularly frustrating.

What does the Judgments Convention do?

The Judgments Convention establishes a framework of uniform rules designed to facilitate the recognition and enforcement of foreign judgments between contracting Judgments Convention states. Presently, contracting Judgments Convention states include Member States of the EU (with the exception of Denmark) and Ukraine. The Judgments Convention will also enter into force in Uruguay on 1 October 2024.

Judgments may qualify for recognition and enforcement in a contracting Judgments Convention state on a variety of different jurisdictional “bases” set out in Article 5, including submission (i.e., the acceptance of the jurisdiction of the court) and contract. Generally, these bases demonstrate a link between: (i) a claim and a contracting Judgments Convention state (for example, in relation to the place of performance of contractual obligations); or (ii) a defendant and a contracting Judgments Convention state (for example, as evidence of the defendant’s habitual place of residence).

Current landscape

Following the end of the Brexit transition period on 1 January 2021, EU legal regimes concerning the recognition and enforcement of judgments (notably, the recast Brussels Regulation) ceased to apply in the UK. This has meant that litigants seeking to recognise and enforce judgments from England and Wales in an EU state (or vice versa) have in many cases been required to adhere to the relevant state’s domestic legal regime. Domestic laws can vary and the uncertainty and need for local law advice can prove to be a costly and time-consuming headache for litigants.

An exception to the use of state’s domestic legal regime is where that state is a contracting party to the Hague Convention (of 30 June 2005) on ‘Choice of Court Agreements’ (the “Agreements Convention”). Like the Judgments Convention, the Agreements Convention establishes a framework of uniform rules for the recognition and enforcement of judgments. However, unlike the Judgments Convention, its application is limited to judgments provided by a court prescribed by an exclusive choice of court agreement (i.e., where the parties have agreed, by way of contract, that the court of a contracting state to the Agreements Convention has exclusive jurisdiction to resolve any related disputes). Accordingly, at present recognition and enforcement is governed by domestic laws relating to the same, save in circumstances where the parties have expressly agreed otherwise.

Future landscape

For judgments obtained in proceedings from 1 July 2025 onwards, litigants seeking to recognise and enforce judgments from England and Wales in a contracting Convention state – or vice versa – will benefit from the Judgments Convention’s clear and coherent framework. Given its applicability is by reference to the date proceedings are commenced, parties will want to consider the timing of their claim carefully, balancing the benefits of the Judgments Convention as against limitation and other issues.

One potential issue on the horizon is the possibility that prior to the Judgments Convention coming into force, the EU (or Ukraine) could trigger the “opt-out” provision in Article 29(2) of the Judgments Convention regarding new contracting Judgments Convention states. This would have the effect of denying the benefits of the Judgments Convention from applying as between Member States of the EU and England and Wales. Whilst this is not entirely beyond the realm of possibility – the European Commission rejected the UK’s application to accede to the Lugano Convention in 2021 – we consider that this is relatively unlikely, particularly as the Agreements Convention presently applies as between Member States of the EU (excluding Denmark) and England and Wales without contention.

Additionally, it is important to note that not all matters fall within the Judgments Convention’s scope, including insolvency, privacy, defamation and some competition matters, which could raise some complications with respect to mixed issue litigation.

Conclusion

With the Judgments Convention and the Agreements Convention soon likely to sit alongside one another, the landscape for cross-jurisdictional litigation appears markedly clearer than it did in the immediate aftermath of Brexit.