We are seeing increasing efforts between states and between courts to co-operate over enforcement of judgments. This is long-overdue when compared to efforts for arbitration.
The New York Convention represents an agreement by 159 states to give effect to private agreements to arbitrate, and to enforce foreign arbitration awards. In 2018, it reached its 60th anniversary, and it arguably stands as the world’s most successful treaty in private international law.
Cross-border enforcement of court judgments can be a more complicated matter. There are long-standing regional arrangements such as the 1968 Brussels Convention and subsequent regulations in Europe, the 1993 Minsk Convention in CIS states, the 1992 Las Leñas Protocol in Latin America, and the 1983 Riyadh Arab Agreement amongst Arab states. There is also a wide network of bilateral agreements, overlaying national legal principles.
New York Convention for Courts?
Efforts to produce a unifying international treaty have been underway since 1992. The Judgments Project of the Hague Conference aimed to develop a convention of broad application. This project was later scaled down to focus on international cases where the parties had agreed to the jurisdiction of a specific court (similar to agreements to arbitrate, enforceable under the New York Convention). This led to the Hague Choice of Court Convention in 2005.
Efforts to produce a unifying international treaty have been underway since 1992. The Judgments Project of the Hague Conference aimed to develop a convention of broad application. This project was later scaled down to focus on international cases where the parties had agreed to the jurisdiction of a specific court (similar to agreements to arbitrate, enforceable under the New York Convention). This led to the Hague Choice of Court Convention in 2005.
The Choice of Court Convention has had modest success. The European Union, Mexico, Montenegro and Singapore are parties to the Convention. China, the Ukraine and the United States have signed the Convention, but have not ratified it. Other countries are interested in signing, including Australia.
The Convention is far from approaching the success of the New York Convention, but holds great potential. A reciprocal enforcement regime involving major economies such as the US, EU and China would be a significant achievement.
Meanwhile, the more ambitious Judgments Project – which would apply to specified judgments even without an agreement on jurisdiction – is now gaining traction.
A revised draft of the proposed Judgments Convention was published in 2018, and a diplomatic session is expected in June 2019 in order to agree the final text.
Hague Choice of Court Convention
| Location | Signed | Ratified |
| EU | x | |
| Mexico | x | |
| Montenegro | x | |
| Singapore | x | |
| China | x | |
| Ukraine | x | |
| United States | x |
Progress on Mediation and Insolvency
Other international initiatives are underway. UNCITRAL has published a Convention on the Enforcement of Mediation Settlements (known as the Singapore Mediation Convention) and accompanying Model Law.
This will be signed in Singapore on 1 August 2019 and will come into effect six months after ratification by at least three UN states.
UNCITRAL has also published new model rules on the recognition and enforcement of insolvency-related judgments. These build on UNCITRAL’s 1997 Model Law on Cross-Border Insolvency, which requires signatories to adopt a unified approach to insolvency law in the areas of access, recognition, assistance and co-operation.
UNCITRAL has also published new model rules on the recognition and enforcement of insolvency-related judgments. These build on UNCITRAL’s 1997 Model Law on Cross-Border Insolvency, which requires signatories to adopt a unified approach to insolvency law in the areas of access, recognition, assistance and co-operation.
Institutional Efforts
And although courts and arbitration institutions are engaged in increasing competition (see above) they are also beginning to co-operate in some areas.
This may be a case of courts joining forces to meet the wider challenge of arbitration, and vice versa.
The Standing International Forum of Commercial Courts was formed in 2016 and met for the first time in London in 2017, with senior judges from 25 jurisdictions discussing improvements to cross-border enforcement and sharing of best practice. By the time the Forum met in New York in October 2018, membership had expanded to 35 jurisdictions.
Arbitration institutions are tentatively taking similar steps. In late 2017, the Singapore International Arbitration Centre (SIAC) published a proposal for cross-institution co-operation in the consolidation of international arbitration proceedings. This has had slow uptake to date, but in October 2018, CIETAC and SIAC announced a working group to discuss this further.
Co-operation is evident in other areas beyond enforcement. In 2019, the European Commission plans to review the EU Service Regulation and the EU Taking of Evidence Regulation. Each of these represent enhancements to the Hague Conventions on each topic.
But 2019 may see significant and long overdue progress in cross-border enforcement of court judgments, allowing parties more latitude in their jurisdictional choices, and more efficient enforcement once a dispute is resolved.
There is a clear global trend pushing party autonomy to the fore in cross-border commercial dispute resolution. The success of the New York Convention for arbitration, and momentum that is gaining for the Hague Convention for litigation, and the recent conclusion of negotiations in UNCITRAL on a Convention and Model Law on the enforcement of settlement agreements … are clear signals of this trend.
Professor Tiong Min Yeo, Singapore Management University – May 2018
A version of this post originally appeared in the 2019 edition of Baker McKenzie’s “The Year Ahead”, a publication looking at key developments in global litigation and arbitration for the coming year.
