International Legal Regulation of Recognition and Enforcement of Foreign Judgments by the Example of Hague Convention of 2005 on Choice of Court Agreements

Gennadii Tsirat, Doctor of Laws | JVS Law

Winning is half the job. The other half starts when the judgment has to be enforced where the debtor keeps its assets. That is the stage at which you find out what the choice of court clause signed years earlier is actually worth.

The Hague Convention of 2005 on Choice of Court Agreements ties the two together: where the parties designated a court by an exclusive agreement, that court’s judgment must be recognised and enforced across the contracting states. This paper examines the mechanism and the grounds on which enforcement may still be refused. Published in Foreign Trade: Economics, Finance, Law, No. 2, 2012, pp. 185–187.

What changed since: in 2012 this was analysis of someone else’s instrument. The Convention has been in force for Ukraine since 1 August 2023.

The 2005 Convention is narrower than it first appears, and that is its strength.

It governs recognition and enforcement of judgments given by courts designated in exclusive choice of court agreements — and only agreements meeting its jurisdictional requirements. Unlike the Hague Convention of 1958, it deliberately does not extend to judgments of courts that took the case under their own law rather than by the parties’ agreement.

The practical consequence: the Convention works only where the clause was drafted properly — exclusive, in writing, compliant with its requirements. A careless clause takes the dispute outside the mechanism altogether.

What it settled: the exclusive character of choice of court agreements, mandatory written form, exclusion of provisional measures from its scope, the rights and duties of contracting states’ courts other than the chosen one, and those of the chosen court itself — plus enforcement proper: conditions, the documents to be produced, and the grounds for refusal.

The list of refusal grounds is exhaustive. Most are familiar and have recurred in treaties for over thirty years: conflict with the public policy of the enforcing state, an irreconcilable judgment, and failure to notify the defendant.

But apparently identical grounds differ in detail from one instrument to another, and the paper shows this through failure to notify:

• Hague Convention 1971 and EU Regulation 44/2001 treat the defendant’s absence, connected to lack of notice, as the ground.
• CIS Convention 1993: the defendant did not take part because the summons was not served on them in time and in due form.
• The 2005 Convention shifts the emphasis: not the absence of the defendant but that the document was not notified to them in sufficient time and in an appropriate manner. The test is form, manner and timing.

And a carve-out: the ground fails where the defendant appeared and argued the case without contesting notification.

Non-compensatory damages. The Convention allows refusal to the extent the judgment awards damages that do not compensate actual loss. The author flags the drafting: the Convention text says “a party” while the Explanatory Report says “the claimant” — and the logical difficulty that refusing enforcement leaves the judgment intact and the parties exactly where they were.

The Convention does not allocate the burden of proof for refusal grounds — unlike the New York Convention 1958, which places it squarely on the party resisting enforcement. That gap has to be filled by national procedural law.

The paper was written in 2012, when the Convention was of academic interest to Ukraine rather than binding law. Since then:

• 21 March 2016 — Ukraine signed (we covered it at the time);
• 28 April 2023 — ratified;
• 1 August 2023 — the Convention entered into force for Ukraine.

In parallel Ukraine ratified the 2019 Hague Judgments Convention on 29 August 2022; it has applied between Ukraine and the EU member states (except Denmark) since 1 September 2023. The two complement each other: the 2005 Convention operates where there is an exclusive choice of court agreement, the 2019 Convention more broadly, without that requirement.

In practice this means the analysis of refusal grounds in this paper is no longer theory: these are the grounds on which a Ukrainian court will now decide the fate of a foreign judgment, and a foreign court the fate of a Ukrainian one.

Tsirat G. A. International Legal Regulation of Recognition and Enforcement of Foreign Judgments by the Example of the Hague Convention of 2005 on Choice of Court Agreements // Foreign Trade: Economics, Finance, Law. — 2012. — No. 2. — pp. 185–187. Full text in Ukrainian: original article (PDF, 3 pp.).