Abstract
The Hague Judgments Convention, which facilitates the recognition and enforcement of foreign judgments, provides for several grounds for the refusal of recognition, including refusal based on insufficient notification. While this ground for refusal of the Judgments Convention seems quite similar to those applied in other conventions, the comparison shows that there are several differences between the Judgments Convention and other texts of reference, both with respect to the context of application as well as with respect to the details of the wording. The optional nature of the grounds for refusal under the Judgments Convention indicates that its primary focus is the free circulation of judgments, and not the protection of the defendant. The latter’s protection is left to the discretion of the state of recognition: a sign of trust amongst the negotiators of the Judgments Convention, but also a risk for the defendant. Practice will show whether the focus of the negotiators was justified.
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Notes
The question of submission by the defendant is omitted here. The original text of the Convention specifies at this point that—obviously—the defendant cannot invoke the insufficiency of notification if, despite such insufficiency, he appeared in court (‘unless the defendant entered an appearance and presented their case without contesting notification in the court of origin, provided that the law of the State of origin permitted notification to be contested’).
Service of documents in arbitration proceedings is of course different from service in court proceedings, as only the latter occurs via the official channels for judicial cooperation. Nevertheless, a comparison between arbitration and court proceedings is interesting regarding the question of service of documents, as in both situations the defendant must be informed of the proceedings abroad, and in both situations insufficient notification is a ground for refusing recognition, and in both the New York Convention and the Judgments Convention factual standards apply for the examination of proper service.
Garcimartín and Saumier (2018), draft Explanatory Report, paras. 248 et seq. References to paragraphs in the current text refer to the draft version of the explanatory report (draft Explanatory Report) and may have changed in the final version of the report. The final report will be available in mid-2020 on https://www.hcch.net/.
Court of Justice of the European Union (CJEU) 6 September 2012, Case C-619/10 Trade Agency, ECLI:EU:C:2012:531, para. 33 (emphasis added), in a decision regarding the Brussels I Regulation, which contains requirements similar to the Judgments Convention.
Garcimartín and Saumier (2018), draft Explanatory Report paras. 249 et seq.
Swiss Supreme Court, decision 5A_560/2007 of 7 January 2008, para. 3.3.2, on the interpretation of the 1988 Lugano Convention: ‘the question of timeliness of service has to be examined according to the law of the state of enforcement’ (translated from German). This decision contradicts case law of the CJEU (see the reference in n. 8), and the legal doctrine on which the court had based its opinion has since been modified; see Walter and Domej (2012), p. 498.
Decision of the Swedish hovrätt of 15 December 2010, on the interpretation of Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L 12/1. The court had to examine the question of the timeliness of notification in a situation where the law of the state of origin (Italy) allowed for the execution of a decision within 50 days after the defendant was notified by postal letter. The Swedish court considered that such service by postal letter to a defendant in Sweden (where such a method of service was not known at that time) was a reason to refuse recognition of the foreign judgment, despite the fact that such method of service was legal under the law of the state of origin.
In this case the 1968 Brussels Convention.
CJEU 11 June 1985, Case C-49/84 Debaecker v. Bouwman, ECLI:EU:C:1985:252, para. 27.
Swiss Supreme Court, decision 5A_230/2012 of 23 December 2012, para. 4.1 (translated from French): Art. 34(2) Lugano Convention no longer requires that judgments must have been duly served according to the standards applicable in the state of origin. However, this does not mean that the judge in the requested state must accept any method of communication, even if it is ambiguous or unusual, to be sufficient; on the contrary, the judge is entitled to require strict proof that the addressee has been enabled to exercise his rights by a notification offering guarantees at least comparable to those of a notification according to the regular standards.
For a very detailed overview, see Oberhammer (2011), paras. 61–71 Art. 34 EuGVVO.
See the references in Oberhammer (2011), para. 69 Art. 34 EuGVVO.
When applying the New York Convention, which similarly does not specify what is meant by the appropriateness and timeliness of service, Chinese courts for example accepted not to apply bilateral treaty requirements on notice contained in mutual legal assistance treaties, arguing that notice was adequate for the purposes of the New York Convention even though it did not conform to the definition of notice under the mutual legal assistance treaty. See the references in the UNCITRAL NYC Guide (2016), p. 157, where this example is taken from. It goes without saying that the case law relating to the New York Convention on arbitral awards cannot directly be compared to the case law relating to judicial decisions, but the juxtaposition shows that in a similar situation (the NYC does not define the factual standards for service) an autonomous interpretation was chosen.
Garcimartín and Saumier (2018), para. 252 draft Explanatory Report.
Swiss Supreme Court, decision 4A_161/2008 of 1 July 2008, para. 3.1 (translated from French): the Lugano Convention does not specify under which rules it is necessary to verify the regularity of the notification. This is the law of the State where the decision was made, when the notification was made on its territory.
(Swiss) Federal Act on Private International Law of 18 December 1987, Art. 27.
CJEU 13 October 2005, Case C-522/03 Scania, ECLI:EU:C:2005:606; CJEU 11 June 1985, Case 49/84 Debaecker and Plouvier, ECLI:EU:C:1985:252, para. 10; CJEU 3 July 1990, Case C-305/88 Lancray, ECLI:EU:C:1990:275, para. 21; and CJEU 28 March 2000, Case C-7/98 Krombach, ECLI:EU:C:2000:164, para. 43.
CJEU 15 July 1982, Case 228/81 Pendy Plastics, ECLI:EU:C:1982:276, paras. 13 et seq.
CJEU 15 March 2012, Case C-292/10 Visser, ECLI:EU:C:2012:142, para. 59.
CJEU 6 June 1981, Case 166/80 Klomps, ECLI:EU:C:1981:137, para. 7.
Ibid., para. 15.
Hartley and Dogauchi (2013), para. 182 fn. 218.
UNCITRAL NYC Guide (2016) p. 125: ‘the Convention grants courts of the Contracting states the discretion to refuse to recognize and enforce an award on the grounds listed in article V, without obligating them to do so.’
HCCH (2003) report, pp. 24–25: ‘Some felt that all grounds should be mandatory, others saw them as discretionary and referred to the introductory phrase “may be refused”, and yet another group wished to make only some grounds mandatory (e.g. public policy and fraud) while other grounds should remain discretionary’; see also Talpis and Krnjevic (2006), p. 28.
European Court of Human Rights, case 17,502/07 Avotiņš of 23 May 2016.
HCCH (2016), para. 50.
References
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Walter G, Domej T (2012) Internationales Zivilprozessrecht der Schweiz. Haupt, Berne
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The views expressed are those of the author and do not reflect the position of the FOJ. All webpages last visited on 6 December 2019. Special thanks to Prof. Dr. Tanja Domej, who provided valuable advice and comments on an earlier version of this article.
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Meier, N. Notification as a Ground for Refusal. Neth Int Law Rev 67, 81–95 (2020). https://doi.org/10.1007/s40802-020-00158-3
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DOI: https://doi.org/10.1007/s40802-020-00158-3