Abstract
The 2019 Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters includes a non-discrimination disposition in Article 14, according to which there shall be no security, bond or deposit required from a party on the sole ground that such a party is a foreign national or is not domiciled or resident in the State in which enforcement is sought. It also deals with the enforceability of orders for payment of costs in situations where the precedent disposition applied, and lays down an ‘opt-out’ mechanism for those Contracting States that may not wish to apply that principle. This article frames the discussion of the non-discrimination principle in the wider context of previous private international law instruments as well as from the perspectives of access to justice, human rights and Sustainable Development Goals (SDGs), understanding that its inclusion in the 2019 Convention was an important, inescapable and necessary achievement.
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Notes
Meeusen (2011), p. 25.
English translation by the author: ‘[…] non-discrimination has become the golden rule for the organization of society in its many fields, both nationally and internationally. The debate is therefore no longer concerned with the great value that this principle embodies, but focuses on the possible limits which can be set and the margin which is left to justify some of these limits’.
International Organization for Migration (IOM) (2019).
United Nations Conference on Trade and Development (UNCTAD) (2019).
Quoted by Meeusen (2011), p. 23.
‘III. SECURITY FOR COSTS
Article 17
No security, bond or deposit of any kind, may be imposed by reason of their foreign nationality, or of lack of domicile or residence in the country, upon nationals of one of the Contracting States, having their domicile in one of these States, who are plaintiffs or parties intervening before the courts of another of those States.
The same rule shall apply to any payment required of plaintiffs or intervening parties as security for court fees.
All conventions under which Contracting States have agreed that their nationals will be exempt from providing security for costs or for payment of court fees regardless of domicile shall continue to apply.
Article 18
Orders for costs and expenses of the proceedings, made in one of the Contracting States against the plaintiff or party intervening exempted from the provision of security, deposit or payment under the first and second paragraphs of Article 17, or under the law of the State where the proceedings have been instituted, shall, upon request made through diplomatic channels, be rendered enforceable without charge by the competent authority, in each of the other Contracting States.
The same rule shall apply to the judicial decisions whereby the amount of the costs of the proceedings is subsequently fixed.
Nothing in the foregoing provisions shall prevent two Contracting States from agreeing that applications for enforcement may also be made directly by the interested party.’
‘Chapter II—security for costs and enforceability of orders for costs
Article 14
No security, bond or deposit of any kind may be required, by reason only of their foreign nationality or of their not being domiciled or resident in the State in which proceedings are commenced, from persons (including legal persons) habitually resident in a Contracting State who are plaintiffs or parties intervening in proceedings before the courts or tribunals of another Contracting State.
The same rule shall apply to any payment required of plaintiffs or intervening parties as security for court fees.
Article 15
An order for payment of costs and expenses of proceedings, made in one of the Contracting States against any person exempt from requirements as to security, bond, deposit or payment by virtue of Article 14 or of the law of the State where the proceedings have been commenced shall, on the application of the person entitled to the benefit of the order, be rendered enforceable without charge in any other Contracting State.’
Quoted by HCCH (2016).
Las Leñas Protocol (1992): ‘Chapter III—Equal Procedural Treatment. Article 3. Citizens and permanent residents of one of the States Parties shall enjoy, in the same conditions as citizens and permanent residents of another State Party, of free access to jurisdiction in that State for the defense of their rights and interests.
The preceding paragraph shall apply to legal entities constituted, authorized or registered according to the laws of any of the States Parties.
Article 4. No bond or deposit, whatever its denomination, may be imposed on the reason of the quality of citizen or permanent resident of another State Party.
The preceding paragraph shall apply to legal entities constituted, authorized or registered according to the laws of any of the States Parties.’ (English translation by the author).
Convention for the Protection of Human Rights and Fundamental Freedoms (1950), Art. 14: ‘ARTICLE 14 Prohibition of discrimination. The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’
Protocol Number 12 (2000), Art. 1: ‘General prohibition of discrimination. 1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.’
American Convention on Human Rights, Art 8: ‘Right to a Fair Trial 1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.’
French version: ‘Article 14—Frais de procédure
1. Aucune sûreté ou caution ni aucun dépôt, sous quelque dénomination que ce soit, ne peut être imposé en raison, soit de sa seule qualité d’étranger, soit du seul défaut de domicile ou de résidence dans l’État requis, à la partie qui demande l’exécution dans un État contractant d’une décision rendue par un tribunal d’un autre État contractant.
2. Toute condamnation aux frais et dépens de la procédure, rendue dans un État contractant contre toute personne dispensée du versement d’une sûreté, d’une caution ou d’un dépôt en vertu du paragraphe premier ou du droit de l’État dans lequel l’instance a été introduite est, à la demande du créancier, déclarée exécutoire dans tout autre État contractant.
3. Un État peut déclarer qu’il n’appliquera pas le paragraphe premier ou désigner dans une déclaration lesquels de ses tribunaux ne l’appliqueront pas.’
Pocar (1984), p. 355.
English translation by the author: ‘First of all, I have the impression that the understanding of a radical distinction between substantive justice and choice-of-law justice relates to the idea of a “neutral” private international law with regard to the regulation of a legal relationship, of a law that does not have a social dimension or which, at most, has an autonomous social dimension, separate from the social dimension of substantive law. This neutrality seems difficult to hold true, however, if one considers, on the one hand, that the rules of private international law are the result of the same state society in which substantive law is elaborated and, on the other, that in this framework any legal rule is intended, as an ultimate goal, to produce a satisfactory material solution to the legal relationships it addresses, even with foreign elements […]’.
References
Hague Conference on Private International Law (HCCH) (2016) Information document No 5 on provisions on costs—drawn up by the Permanent Bureau. https://assets.hcch.net/docs/6e3cd96b-ead4-4975-81eb-808cf5fdda2a.pdf. Accessed 26 Feb 2020
International Organization for Migration (IOM) (2019) World migration report 2020. https://publications.iom.int/books/world-migration-report-2020-chapter-1. Accessed 30 Nov 2019
Meeusen J (2011) Le Droit International Privé et le principe de non-discrimination. Recueil des Cours 353:13–183
Pocar F (1984) La protection de la partie faible. Recueil des Cours 188:343–417
United Nations Conference on Trade and Development (UNCTAD) (2019) Key statistics and trends in international trade 2018. United Nations, Geneva. https://unctad.org/en/PublicationsLibrary/ditctab2019d2_en.pdf. Accessed 30 Nov 2019
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Marcos Dotta Salgueiro was the Vice Chair of the 22nd Diplomatic Session of the Hague Conference on Private International Law. All opinions in this article are expressed in a personal capacity.
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Dotta Salgueiro, M. Article 14 of the Judgments Convention: The Essential Reaffirmation of the Non-discrimination Principle in a Globalized Twenty-First Century. Neth Int Law Rev 67, 113–120 (2020). https://doi.org/10.1007/s40802-020-00160-9
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DOI: https://doi.org/10.1007/s40802-020-00160-9