Letters Blogatory

The Blog of International Judicial Assistance
By Ted Folkman

More on the Draft Judgments Convention In The Light Of COCA

I wanted to add a few comments to my observations about the new draft text of a Judgments Convention from yesterday:

  • It is difficult for me to imagine states agreeing to the Judgments Convention but not to the Convention on Choice of Court Agreements. COCA is less ambitious in scope, because it requires agreement of the parties. If a state isn’t willing to enforce a foreign judgment when the parties to that judgment have expressly agreed in writing that the court rendering the judgment was the proper court to hear the dispute, why would it be willing to enforce a foreign judgment in the absence of such an agreement?
  • The proposed text of the Judgments Convention also excludes many classes of disputes, including family law and similar disputes, consumer contract disputes, probate disputes, disputes about corporate existence and governance, and (under Article 6) disputes involving registered IP rights or real property (unless the court that entered the judgment was the court of the state where the rights are registered or the realty lies). With all of these exclusions, and with COCA available to deal with commercial contractual disputes, one way to think about the Judgments Convention is as a convention for tort cases.
  • The problem of systematically inadequate foreign judiciaries seems worse in a Judgments Convention context than in a COCA context, because under COCA, the parties presumably have made their own judgments about the adequacy of the court system they choose, and I think there is a good argument that if they are wrong, or if conditions in the chosen country change, then the parties have assumed the risk. None of this is so in the Judgments Convention context.
Ted Folkman
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2 responses to “More on the Draft Judgments Convention In The Light Of COCA”

  1. Chris Whytock

    Great analysis, as usual, Ted—many thanks. A couple questions/comments: (1) I think we’ve generally been on the same page about the systemic due process exception, and skeptical about the need for case-specific exceptions in light of the systemic one … but if the train on case-specific exceptions has left the station (as it seems to in the U.S. and in the HCCH draft in Article 5(1)(c)), what are your thoughts on whether the systemic exception is also necessary or appropriate? (2) Article 4(4) reads “may” be postponed or refused. I’ve wondered why this shouldn’t be a “must.” Thoughts?

    Reply
    1. Ted Folkman

      Thanks for the comment, Chris. You raise interesting points.

      1. Maybe the ship has sailed on case-specific exceptions. I’ve suggested that if there is a systemic exception we don’t need case-specific exceptions. Does that work in reverse? If there is a case-specific exception can we dispense with case-specific exceptions? At first blush I’d say no. Can’t we imagine a case where there is no fraud and the case goes entirely according to the prescribed procedure, but the procedure itself fails to satisfy due process? For example, suppose a foreign state still uses wager of law. Or suppose a case where the executive is so powerful and terrifying that judges always do its bidding, even if there’s no procedural fraud in the particular case. What do you think?

      2. I think “may” is probably the right choice for Article 4(4). I’m just thinking about this from the American perspective; in federal practice (though not, e.g., Massachusetts practice) a judgment is not stayed pending appeal unless the appellant files a supersedas. So “must” would, I think, be overprotective. The bigger “may” versus “must” problem seems to me to be Article 5. The UFCMJRA has some mandatory grounds and some permissive grounds for non-recognition. Not so here! Again, what do you think?

      Reply

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