Judgment Convention Update
Posted on May 14, 2018
The Judgment Convention continues its progress towards a final text. The special commission on the proposed convention will meet again in the Hague later this month, and a preliminary document (I’ve attached the redlined version) shows some of the proposed approaches to difficult issues.
One of the more interesting issues is the Convention’s treatment of IP cases. I am going to leave that to the side here, because I would like to do a post devoted just to that issue. There are some other interesting points.
The discussion of the exclusion or privacy cases from the scope of the Convention is interesting to me in light of the GDPR. Many US companies do business in Europe and thus are clearly going to be accountable to European courts for their compliance with the Regulation. But the Regulation purports to reach firms located anywhere in the world that collect information about EU citizens. So there will be some US or other non-European firms that likely will not be directly within the effective reach of the European courts. So if those companies are to be subject to sanctions for violating the Regulation, the sanctions could come through recognition and enforcement of a European decision in the companies’ home countries. Yet it is clear that the European view on data protection is not universal. It seems to me that in the United States and perhaps elsewhere, some of the obligations in the GDPR would be unenforceable for constitutional reasons (I am thinking in particular of the right to erasure of data) or for other reasons. So it seems sensible to except decisions in this area from the Convention’s ordinary rule of recognition, at least if the goal is to encourage the US to join the Convention.
The discussion of the proposed Convention’s treatment of res judicata is also interesting. On the one hand, the new draft omits language from prior drafts that would have required courts in the requested to give a judgment the same effect it would have in the state of origin. But the draft doesn’t replace that rule with a rule providing that the law of the requested state should govern, either. In short, the drafters have opted for silence. The drafters of the preliminary document seek to put a spin on this:
The silence of the draft Convention on this issue must be interpreted in a uniform manner in accordance with its objectives. The obligation to recognise a foreign judgment under the draft Convention implies that the same claim or cause of action cannot be re-litigated in another State. Thus, if the foreign judgment determines the existence or non-existence of rights or obligations asserted in a claim, these rights or obligations shall not be subject to further litigation in the courts of the requested State.
I am not entirely sure of the intent here. Are the authors proposing that the res judicata effect of a judgment be decided under rules of res judicata that are autonomous and that stem from the Convention itself rather than from any of the relevant national laws? In one sense, the main provisions of the Convention are really just rules of res judicata—a court that is required to recognize a foreign judgment is really just required to treat that judgment as res judicata. But when you get into the details of the law of preclusion, I can foresee difficulties. Suppose the law of the state of origin is that a person who was not a party to the first action can assert that a person who was a party to the first action is bound by the first court’s decision an issue, but the law of the requested state does not. Is there really a way to decide what to do “in a uniform manner in accordance with [the Convention’s objectives] that doesn’t depend on the national law of one or the other of the relevant states? I am not sure.