Inaugural Global Conference 2019 HCCH Judgments Convention: Global Enforcement of Civil and Commercial Judgments Scope of the Judgments Convention Keisuke Takeshita Graduate School of Law Hitotsubashi University (JAPAN)

Outline General Framework Scope of the Judgments Convention International Obligations under the Judgments Convention Judgments by courts of non-Contracting States Scope of the Judgments Convention Judgments in Civil or Commercial Matters Matters excluded from the Scope of the Convention (Art. 2(1)) Arbitration and Related Proceedings Exclusion of Intellectual Property Exclusion of Intellectual Property (Art. 2(1)(m)) Contracts relating to Intellectual Property Preliminary Question Concluding Remarks

1. General Framework (1) International Obligations under the Judgments Convention International Obligation to Recognise and Enforce Judgments A judgment given by a court of a Contracting State (State of origin) shall be recognised and enforced in another Contracting State (requested State) in accordance with the provisions of this Chapter. Recognition or enforcement may be refused only on the grounds specified in this Convention. (Art. 4(1)) International Obligation to Refuse Recognition and Enforcement of Judgments Notwithstanding Article 5, a judgment that ruled on rights in rem in immovable property shall be recognised and enforced if and only if the property is situated in the State of origin. (Art. 6)

Recognition/Enforcement 1. General Framework (1) International Obligations under the Judgments Convention International Obligation to Recognise and Enforce Judgments State of Origin (SO) JUDGMENT Requested State (RS) Recognition/Enforcement (i) The Judgment falls within the scope. (ii) The Judgment has effect in SO. (Art. 4(3)) (iii) The Judgment is eligible for R&E under Art. 5 or 6. RS may refuse recognition/enforcement under Art. 7, etc.

1. General Framework (1) International Obligations under the Judgments Convention International Obligation to Refuse Recognition and Enforcement of Judgments State of Origin JUDGMENT on Rights in Rem in Immovable Property in State A State A Immovable Property Exclusive jurisdiction Requested State NO Recognition/Enforcement RS needs to refuse recognition and enforcement.

1. General Framework (2) Judgments by courts of non-Contracting States No International Obligation concerning Judgments of Non-Contracting States This Convention shall apply to the recognition and enforcement in one Contracting State of a judgment given by a court of another Contracting State. (Art. 1(2)) State of Origin (non Contracting State) JUDGMENT on Rights in Rem in Immovable Property in State A State A Immovable Property Exclusive jurisdiction Requested State Recognition/Enforcement ? ? RS’s national law determines whether the judgment is recognized and enforced.

2. Scope of the Judgments Convention (1) Judgments in Civil or Commercial Matters Judgments in Civil or Commercial Matters (Art. 1(1)) This Convention shall apply to the recognition and enforcement of judgments in civil or commercial matters. It shall not extend in particular to revenue, customs or administrative matters. (Art. 1(1)) Exclusion of public law and criminal law matters. Key element: Exercise of governmental or sovereign power. Definition of Judgments (b) “judgment” means any decision on the merits given by a court, […]. (Art. 3(1)(b)) “a court” – Part of the judicial branch – Exercise of judicial functions “It would cover a decision by a patent office exercising quasi-judicial functions.” (Hartlay/Dogauchi Report, footnote 146) – “It does not include administrative authorities, such as patent or trademark offices […]” (Revised Draft Explanatory Report of the Judgments Convention, para. 89)

2. Scope of the Judgments Convention (2) Matters Excluded from the Scope of the Convention Differences of Excluded Matters from the 2005 Choice of Court Convention 2005 Choice of Court Convention Judgments Convention Art. 2(1) This Convention shall not apply to exclusive choice of court agreements - a) to which a natural person acting primarily for personal, family or household purposes (a consumer) is a party; b) relating to contracts of employment, including collective agreements. Those matters are within the scope of the Judgments Convention. Cf. Art. 5(2) of the Judgments Convention Art. 2(2) e) insolvency, composition and analogous matters; (e) insolvency, composition, resolution of financial institutions, and analogous matters; g) marine pollution, limitation of liability for maritime claims, general average, and emergency towage and salvage; (g) transboundary marine pollution, marine pollution in areas beyond national jurisdiction, ship-source marine pollution, limitation of liability for maritime claims, and general average;

2. Scope of the Convention (2) Matters Excluded from the Scope of the Convention 2005 Choice of Court Convention Judgments Convention h) anti-trust (competition) matters; (p) anti-trust (competition) matters, except where the judgment is based on conduct that constitutes an anti-competitive agreement or concerted practice among actual or potential competitors to fix prices, make rigged bids, establish output restrictions or quotas, or divide markets by allocating customers, suppliers, territories or lines of commerce, and where such conduct and its effect both occurred in the State of origin; j) claims for personal injury brought by or on behalf of natural persons; k) tort or delict claims for damage to tangible property that do not arise from a contractual relationship; l) rights in rem in immovable property, and tenancies of immovable property; Those matters are not enumerated in Art. 2(1). Cf. Art. 5(1)(h) and (i), Art. 5(3) and Art. 6 of the Judgments Convention

2. Scope of the Convention (2) Matters Excluded from the Scope of the Convention 2005 Choice of Court Convention Judgments Convention m) the validity, nullity, or dissolution of legal persons, and the validity of decisions of their organs; (i) the validity, nullity, or dissolution of legal persons or associations of natural or legal persons, and the validity of decisions of their organs; n) the validity of intellectual property rights other than copyright and related rights; o) infringement of intellectual property rights other than copyright and related rights, except where infringement proceedings are brought for breach of a contract between the parties relating to such rights, or could have been brought for breach of that contract; (m) intellectual property; (k) defamation; (l) privacy;

2. Scope of the Convention (2) Matters Excluded from the Scope of the Convention 2005 Choice of Court Convention Judgments Convention (n) activities of armed forces, including the activities of their personnel in the exercise of their official duties; (o) law enforcement activities, including the activities of law enforcement personnel in the exercise of their official duties; (q) sovereign debt restructuring through unilateral State measures. The following matters are excluded from both of the Conventions (a)the status and legal capacity of natural persons; (b)maintenance obligations;(c) other family law matters, including matrimonial property regimes and other rights or obligations arising out of marriage or similar relationships;(d) wills and succession;(f) the carriage of passengers and goods; (h) liability for nuclear damage

2. Scope of the Convention (3) Arbitration and Related Proceedings Arbitration and Related Proceedings “[T]his should be interpreted widely and covers any proceedings in which the court gives assistance to the arbitral process[.]” (Hartlay/Dogauchi Report, Para. 84) Basic policy may be: “No influence on the arbitration world” Judgments and Arbitration Agreements Scenario: Arbitration agreement between parties to a contract – A court of a Contracting State rendered a judgment despite the agreement. If the defendant argued in the proceeding that the agreement is valid, a requested State may refuse recognition and enforcement of the judgment. (Art. 8(2)) There may be a case of a default judgment.

3. Intellectual Property (1) Exclusion of Intellectual Property (Art. 2(1)(m)) Exclusion of Intellectual Property (Art. 2(1)(m)) Art. 2(2)(n) and (o) of the 2005 Convention – Copyrights and related rights – where infringement proceedings are brought for breach of a contract between the parties relating to such rights, or could have been brought for breach of that contract. “Intellectual Property” – Autonomous Concept of the Convention The term covers a broad range of matters and includes both rights that are internationally accepted as intellectual property and also other similar or analogous matters, such as matters that are treated by some, but not all, States as intellectual property, such as traditional knowledge, genetic resources and traditional cultural expressions. IP that may arise in the future.

© Yusuke Takeshita

3. Intellectual Property (2) Contracts relating to Intellectual Property Article 2.1(m) does not exclude all contractual matters that have an intellectual property aspect The 2005 Convention – Judgments on contract are included in the scope. A judgment ordering payment of royalties based on a usual license contract Judgments on contractual matters which are characterized as “Intellectual Property” A dispute to seek a judicial decision on a standard essential patent (SEP) with a fair, reasonable, and non-discriminatory (FRAND) licensing obligation. An employment dispute involving a determination of ownership issues on the basis of substantive intellectual property legislation.

3. Intellectual Property (3) Preliminary Question IP Issues as Preliminary Questions Recognition or enforcement of a judgment may be refused if, and to the extent that, the judgment was based on a ruling on a matter to which this Convention does not apply,[…] (Art. 8(2)) State of Origin Payment of Royalties Invalidity as a Defense (Preliminary Question) Requested State JUDGMENT ordering Payment of Royalties ? RS may refuse recognition and enforcement of the Judgment. (Art. 8(2))

4. Concluding Remarks Comments on the Scope of the Convention “Moderate” Scope Room for Interpretation – Uniform Interpretation (Art. 20) Reasonable attitude of Contracting States Judgments by courts of non-Contracting States Possible refusal based on Art. 8(2) Intellectual Property Broad Exclusion of IP matters Differences of rules on IP (not only PIL, but also substantive law) among jurisdictions

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