Entry into force between Spain and the UK of the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (concluded in The Hague on 2 July 2019)

On 1 July, the 2019 Hague Convention on the recognition and enforcement of foreign judgments in civil or commercial matters entered into force between Spain and the UK. This is good news as this text makes it easier for judgments handed down in one of these countries to be recognised and enforced in the other. Heretofore, since Brexit, such recognition and enforcement was governed in each country by its own domestic law, with the sole exception of the 2005 Hague Convention on choice of court agreements.

As its title indicates, the 2019 Hague Convention establishes a common framework for the recognition and enforcement of foreign judgments in civil or commercial matters, although it expressly excludes certain matters from its scope, including those relating to: the status and legal capacity of natural persons; family law matters; wills and succession; insolvency; the carriage of passengers and goods; marine pollution, limitation of liability for maritime claims, and general average; liability for nuclear damage; the validity, nullity or dissolution of legal persons or associations of natural or legal persons, and the validity of the decisions of their organs; the validity of entries in public registers; defamation; privacy; or restrictions on free competition, except in certain cases (Article 1.1). It also does not apply to arbitration and related proceedings (Article 1.3), but it does apply to the enforcement of judicial settlements on matters covered (Article 11).

Time wise, the Convention only applies to judgments if, at the time the proceedings were instituted in the State of origin, the Convention had effect between that State and the requested State (Article 16). Moreover, the Convention does not preclude the application of the most favourable national regime (Article 15) and is not incompatible with other international conventions (Article 24), including the 2005 Hague Convention.

As regards the bases for recognition and enforcement, Article 5 of the Convention only considers a judgment to be eligible for recognition and enforcement if the court of origin based its jurisdiction on one of the criteria it contains or if recognition and/or enforcement is sought against the person that brought the claim, other than a counterclaim.  Article 7 sets out the standard grounds for refusal of recognition and enforcement, including that the judgment was obtained by fraud or that recognition or enforcement would be manifestly incompatible with the public policy of the requested State, without such checks implying, however, the possibility of a review on the merits. Of interest is the reference in Article 10 to punitive damages, the award of which in the State of origin may be a ground for refusal of recognition (“Recognition or enforcement of a judgment may be refused if, and to the extent that, the judgment awards damages, including exemplary or punitive damages, that do not compensate a party for actual loss or harm suffered”).

From a procedural point of view, the law of the requested State is applied, which in Spain leads to the application of the International Legal Cooperation in Civil Matters Act, which allows automatic recognition by way of a motion and requires exequatur for the declaration of enforceability. In the UK, the applicable legislation is The Recognition and Enforcement of Judgments (2019 Hague Convention etc.) Regulations 2024 (SI 2024 No. 713), which provides for a system of application for registration for enforcement to the High Courtin the case of England, Wales and Northern Ireland and to the Court of Sessionin Scotland.