The United States is not currently a party to any international agreement regarding the recognition or enforcement of judgments. This situation is likely to change, however, when the new Hague Convention on judgments, due in the year 2000, is completed: the United States, along with many other nations from around the world, is expected to join in the new Convention. To that end, the Hague Conference on Private International Law, along with the potential signatories, has been working to devise a Convention that adequately accommodates the various notions of procedural justice and fairness inherent in the different legal systems involved. If the United States signs and accedes to the new Convention, its provisions, binding as federal law, could significantly change the legal landscape for transnational cases. While likely enhancing the predictability of results, the Convention could also have the potential for limiting the enforceability of U.S. judgments abroad and could, under certain circumstances, actually decrease predictability.

Current Status of the Convention

The Convention is currently in a pre-draft stage. The Hague Conference on Private International Law, which is overseeing the process, held the first Special Commission on International Jurisdiction and the Effects of Foreign Judgments in Civil and Commercial Matters in June of 1997. This meeting was followed by a second Special Commission in March 1998. The Third Special Commission is meeting from November 10 to 20 of this year. So far, the Permanent Bureau of the Conference has circulated a “Preliminary Draft Out Line” containing different proposed versions of specific provisions of the new Convention; the third Special Commission will address these proposals and take indicative votes. A fourth Special Commission schedule to meet from June 7 to 18, 1999, will address a draft text of the Convention, to be prepared after the voting this November. It is hoped that a diplomatic session of the Hague Conference will adopt a final draft for signature and ratification in October of 2000.

Key Areas Covered

The Convention will set forth criteria and procedures for the recognition and enforcement of judgments between Contracting States. In addition, it will define its own scope, including the types of matters that it covers (and exclusions, such as wills and bankruptcies) and the relationship that must exist between the matters and the Convention’s geographical area. Going beyond facilitating the enforcement of judgments rendered in contracting states, the Convention will define the bases of jurisdiction to adjudicate: only judgments rendered in reliance on one of the specified bases of jurisdiction would be subject to recognition and enforcement under the Convention. The Convention will set out, not only the allowable bases of personal jurisdiction, but also prohibited bases together with exceptions to them.

The Hague Conference views jurisdiction as being at the heart of the issue of enforcement, as in the Brussels Convention: “[i]t is because the court which has dealt with the merits of the case possesses jurisdiction . . . that its judgment will, except in limited exceptional cases, take effect on the territory of all the other States Parties.” Thus, the Convention will not only set out procedures for recognition and enforcement of judgments, but it could also demarcate permissible and impermissible bases of jurisdiction over persons and matters in which enforceable judgments may be based.