1. Jurisdiction filters
The 2019 Hague Convention on the recognition and enforcement of foreign judgments in civil or commercial matters
Hong Kong 9th September 2019

2. Conditions for circulation of a judgment
A judgment in a civil or commercial matter
Not excluded from scope (e.g. under A.2 exceptions)
Eligible for recognition and enforcement by virtue of satisfying a jurisdictional filter (A.5 or A.6)
No applicable grounds for refusal can be made out
must be R&E’d per A.4

3. Purpose and operation of filters
Provide a common set of rules which contracting parties accept as a sufficient basis for eligibility to circulate
Representing sufficient connection to the state of the court giving judgment
Essentially indirect rules of jurisdiction – the convention does not govern jurisdiction.
Judgments within scope of the Convention must satisfy one of the jurisdictional filters in A.5 or A.6 as a precondition to R&E. Gateway. There is no hierarchy in A.5(1).
Whether the judgment satisfies such a filter will be determined by the requested court. Basis on which court of origin actually took jurisdiction is not assessed.
Once satisfied, the judgment is in principle eligible for mandatory R&E subject to other rules of the convention, notably the discretion to refuse under A.7

4. Categories of filter – A.5
General grounds of jurisdiction connected with the situation of the defendant/ person against whom R&E sought – habitual residence (A.5(1)(a)); place of business (natural person, A.5(1)(b)); branch jurisdiction (A.5(1)(d));
Or related to the notion of consent (submission) - judgment debtor is claimant (A.5(1)(c)); submission to jurisdiction (A.5(1)(e),(f)); counterclaim (A.5(1)(l)); non exclusive choice of court (A.5(1)(m)).
Available regarding any judgment within scope regardless of subject matter – those grounds which are subject matter specific are not.

5. Special grounds
Specific grounds relating to the subject matter of the judgment. Focus is connection between the state of origin and the claim.
Contract A.5(1)(g), lease of immovable property A.5(1)(h), contractual claim secured on immovable property where both are sued on together A.5(1)(i), tort (non contractual obligation) relating to physical loss A.5(1)(j), and judgments concerning the internal management of trusts (A.5(1)(k).

6. Exclusive basis for R&E under A.6
Judgments concerning rights in rem in immovable property cannot circulate unless the judgment was given by the court of the state in which the property was situate.
The existence of an alternative A.5 ground is wholly irrelevant.
This is an absolute rule – note A.15 – the convention does not restrict R&E of a judgment under national law, but even this rule is subject to A.6. Other provisions of the convention also protect this jurisdiction, for example the provisions of A.8.
The universality of this exclusivity is unlikely to come as a surprise in many systems.

7. Nature of the general grounds (1)
Focus is on situation of person against whom R&E sought, or his/her/its conduct in accepting jurisdiction (submission).
Grounds A.5(1)(a) – habitual residence (nb defined for entities other than natural persons in A.3(2)), A.5(1)(b) the place of business (for a natural person), or defendant’s agency branch activity (A.5(1)(d)) – clear justification in that a person who lives in a state can expect to be subject to the jurisdiction of its courts – and where your business activities in another state result in a dispute you can expect likewise.

8. Nature of the general grounds (2)
Grounds A.5(1)(c), (e), (f), (l) and (m) are all situations in which the judgment debtor in some way accepted the jurisdiction of the court of origin, whether by suing or (where he had the choice) counterclaiming there, or by expressly accepting jurisdiction (e.g. a choice of court clause), or by doing so by implication by contesting the merits – although the caveats in A.5(1)(f) in particular indicate that assessing submission is not always a simple matter given the variety of rules in different systems.

9. Specially protected situations under A.5
A.5(2) – special protection for consumers and employees as judgment debtors.
Consumer is a “natural person acting primarily for personal, family or household purposes”; employee only protected vis a vis matters relating to his/her employment contract.
These categories of judgment debtors considered to generally require some special protection by reason of the relative bargaining strength of the other party (seller/ employer) in the formation of legal relations between them.
Therefore most of the “submission” type grounds in A.5(1) do not apply at all, and for A.5(1)(e) there is a specific requirement that the consumer or employee’s consent was expressly addressed to the court itself.

10. Specially protected situations (2) – A.5
Finally, A.5(3) specifically takes cases concerning a residential lease of immovable property (tenancy) or which rule on the registration of immovable property out of A.5(1) altogether. The only available jurisdictional filter which applies to these under the convention is A.5(3), whereby the judgment can circulate only if given by the court of the state where the property is situate.
However, unlike A.6, this rule does not “trump” national R&E rules per A.15.

11. A brief comparison with the approach of a common law system
What role do jurisdictional filters play in the recognition and enforcement of foreign judgments in England and Wales, and how does it compare?

12. “Jurisdictional filters” and the English common law
Where there is no reciprocal agreement with another country -
Common law: a foreign judgment in personam is eligible for R&E if it fulfils one of the following criteria:
Judgment debtor was present in state of foreign court at the time proceedings were commenced;
Judgment debtor was the claimant or counter claimant;
The Judgment debtor submitted to the jurisdiction by voluntary appearance in the proceedings without contesting the merits
Judgment debtor had agreed (prior to commencement) to submit to the jurisdiction of the foreign court in relation to the subject matter of the proceedings (e.g. COCA).

13. How are these criteria applied?
As with the Convention, they are not the only relevant factors, but they provide a similar eligibility threshold to R&E as we see in the Convention.
The English court will determine whether the foreign court had jurisdiction according to English rules of private international law – the rules of the foreign court on jurisdiction are not in themselves relevant.
And there is again a focus on the situation of the judgment debtor (presence in foreign country) or the question of submission to the foreign jurisdiction.
To this degree the convention reflects aspects of the common law and its requirements would not therefore be entirely novel to the English system.

14. What are the key differences with the convention?
The jurisdictional bases for R&E in the convention are much more defined and extensive than those under English common law in particular in comparison with the “presence” ground.
In particular, although a subject matter connection with England and Wales will often suffice for direct jurisdiction of the English courts (subject to forum conveniens principles), that is not the case in relation to the jurisdiction of the foreign court for R&E.
Moreover, whereas at present the English courts are the sole arbiter of what the jurisdictional bases are, it will be necessary to apply an autonomous interpretation to those required by the convention.

15. Thank you for your attention
Emma Burgess September 2019