Breaking Bad: Fail-safes to the Hague Judgments Convention

NOTES

Breaking Bad: Fail-Safes to the Hague Judgments

Convention

DIANA A. A. REISMAN*

The underlying and optimistic premise of the 2019 Hague Judgments

Convention is that a state’s transparent and impartial judicial system at

the time that it becomes party to the Convention will not deteriorate. The

Convention ignores the possibility of a State Party’s judicial system

“breaking bad.” This Note explores the modalities available to the

United States as a party if the judicial system of one of its co-contracting

parties declines below a minimum standard. Beginning with the legal

framework proposed by the Convention as compared to existing U.S. law

on the recognition and enforcement of foreign judgments, this Note

explores the avenues under the Convention and other instruments in

international law by which the United States might extricate itself from

its treaty obligations to a compromised State Party. While this Note sup-

ports U.S. adherence to the Convention, it recommends that the United

States consider making a reservation to the Convention addressing the

contingency of a state whose judicial system breaks bad.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 880

I. TRANSITION TO THE HAGUE FRAMEWORK . . . . . . . . . . . . . . . . . . . . . . . . . . 883

A. STATE OBLIGATIONS UNDER THE JUDGMENTS CONVENTION. . . . . . . . 884

1. Substantive Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . 885

2. The Regulation of Treaty Relations with Other States

Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 885

B. CURRENT U.S. LAW ON FOREIGN JUDGMENTS RECOGNITION . . . . . . . . 887

1. The Legacy of Hilton v. Guyot. . . . . . . . . . . . . . . . . . . . . 888

* Editor-in-Chief, The Georgetown Journal of International Law; Georgetown Law, J.D. expected

2021; Sciences Po, M.A. 2017; Yale University, B.A. 2014. © 2021, Diana A. A. Reisman. The author

would like to thank Professor David Stewart for his feedback on earlier drafts of this Note; Michael

Coffee, head of the U.S. delegation to the Diplomatic Session that adopted the Judgments Convention,

for providing insight into the negotiations; and the editors of The Georgetown Law Journal for their

suggestions and careful editorial work. All opinions are those of the author and do not ref‌lect the views

of any organization. All errors are her own.

879

2. The Grounds for Nonrecognition of Foreign Judgments . . 888

3. Fraud in the Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . 889

4. Systemic Lack of Due Process. . . . . . . . . . . . . . . . . . . . . 892

II. THE SCENARIO: THE JUDICIARY OF A CONTRACTING STATE

DETERIORATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 893

III. THE NONSTARTERS: OPTIONS THAT COMPROMISE U.S. INTERESTS. . . . . . 895

IV. THE SOLUTIONS: DEROGATIONS PERMITTED UNDER INTERNATIONAL LAW 897

A. A CHAPTER VII RESOLUTION BY THE UNITED NATIONS SECURITY

COUNCIL................................................ 897

B. ARTICLE 62 OF THE VIENNA CONVENTION ON THE LAW OF TREATIES 899

C. A RESERVATION TO THE JUDGMENTS CONVENTION. . . . . . . . . . . . . . . 903

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906

INTRODUCTION

The 2019 Convention on the Recognition and Enforcement of Foreign

Judgments in Civil or Commercial Matters (the Judgments Convention) rests on

the premise that, in 2020, “the number of countries in which litigation may

‘belong’ but in whose courts the quality of the judicial process would make us

uneasy is small.”

1

The objectives of the Judgments Convention are to ease the

enforcement of foreign civil judgments between States Parties and to harmonize

those few restrictions that are retained.

2

If the Convention were in force between

two States Parties, a civil judgment rendered by one state’s judiciary that falls

within the scope of the Judgments Convention would have to be recognized by

the court of the other state, unless one of the narrow grounds for nonrecognition

applied.

3

Implicit in that premise is that worldwide judicial systems are continu-

ally improving and that, in courts across nations, a historical arc is bending to-

ward a convergence with regard to the values of equity and transparency. That

1. Adrian Briggs, Which Foreign Judgments Should We Recognise Today?, 36 INT’L & COMP. L.Q. 240,

258 (1987). The author made this statement in 1987 in reference to the focus of English courts on jurisdiction

rather than on choice of law when deliberating on recognition proceedings for foreign judgments. However, the

statement equally captures the underlying premise of the 2019 Hague Judgments Convention open for signature

today. See Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial

Matters pmbl., opened for signature July 2, 2019, https://assets.hcch.net/docs/806e290e-bbd8-413d-b15e-

8e3e1bf1496d.pdf [https://perma.cc/3VHW-DB4W] [hereinafter 2019 Hague Judgments Convention].

2. See FRANCISCO J. GARCIMARTI

´N ALFE

´REZ & GENEVIE

`VE SAUMIER, HAGUE CONFERENCE ON PRIVATE

INT’L LAW, JUDGMENTS CONVENTION: REVISED PRELIMINARY EXPLANATORY REPORT 5 (2018), https://assets.

hcch.net/docs/7cd8bc44-e2e5-46c2-8865-a151ce55e1b2.pdf [https://perma.cc/G4SR-76KU].

3. See 2019 Hague Judgments Convention art. 4, supra note 1.

880 THE GEORGETOWN LAW JOURNAL [Vol. 109:879