CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN
JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS
(Concluded 1 February 1971)
The States
signatory to the present Convention,
Desiring to
establish common provisions on mutual recognition and enforcement of judicial
decisions rendered in their respective countries,
Have resolved to
conclude a Convention to this effect and have agreed on the following
provisions:
chapter i -
scope of the convention
Article 1
This Convention
shall apply to decisions rendered in civil or commercial matters by the courts
of Contracting States.
It shall not
apply to decisions the main object of which is to determine -
(1)
the status or capacity of persons or questions of family law, including
personal or financial rights and obligations between parents and children or
between spouses;
(2) the existence or constitution of legal persons or the powers of
their officers;
(3) maintenance obligations, so far as not included in
sub-paragraph (1) of this Article;
(4) questions of succession;
(5) questions of bankruptcy, compositions or analogous proceedings,
including decisions which may result therefrom and which relate to the validity
of the acts of the debtor;
(6) questions of social security;
(7) questions relating to damage or injury in nuclear matters.
This Convention
does not apply to decisions for the payment of any customs duty, tax or
penalty.
Article 2
This Convention
shall apply to all decisions given by the courts of a Contracting State,
irrespective of the name given by that State to the proceedings which gave rise
to the decision or of the name given to the decision itself such as judgment,
order or writ of execution.
However, it
shall apply neither to decisions which order provisional or protective measures
nor to decisions rendered by administrative tribunals.
Article 3
This Convention
shall apply irrespective of the nationality of the parties.
chapter ii -
conditions of recognition and enforcement
Article 4
A decision
rendered in one of the Contracting States shall be entitled to recognition and
enforcement in another Contracting State under the terms of this Convention -
(1)
if the decision was given by a court considered to have jurisdiction within the
meaning of this Convention, and
(2) if it is no longer subject to ordinary forms of review in the
State of origin.
In addition, to
be enforceable in the State addressed, a decision must be enforceable in the
State of origin.
Article 5
Recognition or
enforcement of a decision may nevertheless be refused in any of the following
cases -
(1)
if recognition or enforcement of the decision is manifestly incompatible with
the public policy of the State addressed or if the decision resulted from
proceedings incompatible with the requirements of due process of law or if, in
the circumstances, either party had no adequate opportunity fairly to present
his case;
(2) if the decision was obtained by fraud in the procedural sense;
(3) if proceedings between the same parties, based on the same
facts and having the same purpose -
a) are pending before a court of the State
addressed and those proceedings were the first to be instituted, or
b) have resulted in a decision by
a court of the State addressed, or
c) have resulted in a decision by
a court of another State which would be entitled to recognition and enforcement
under the law of the State addressed.
Article 6
Without
prejudice to the provisions of Article 5, a decision rendered by default shall
neither be recognised nor enforced unless the defaulting party received notice
of the institution of the proceedings in accordance with the law of the State
of origin in sufficient time to enable him to defend the proceedings.
Article 7
Recognition or
enforcement may not be refused for the sole reason that the court of the State
of origin has applied a law other than that which would have been applicable
according to the rules of private international law of the State addressed.
Nevertheless,
recognition or enforcement may be refused if, to reach its decision, the court
of the State of origin had to decide a question relating either to the status
or the capacity of a party or to his rights in other matters excluded from this
Convention by sub-paragraphs (1)-(4) of the second paragraph of Article 1, and
has reached a result different from that which would have followed from the
application to that question of the rules of private international law of the
State addressed.
Article 8
Without
prejudice to such review as is required by the terms of the preceding Articles,
there shall be no review of the merits of the decision rendered by the court of
origin.
Article 9
In questions
relating to the jurisdiction of the court of the State of origin, the authority
addressed shall be bound by the findings of fact on which that court based its
jurisdiction, unless the decision was rendered by default.
Article 10
The court of the
State of origin shall be considered to have jurisdiction for the purposes of
this Convention -
(1)
if the defendant had, at the time when the proceedings were instituted, his
habitual residence in the State of origin, or, if the defendant is not a
natural person, its seat, its place of incorporation or its principal place of
business in that State;
(2) if the defendant had, in the State of origin, at the time when
the proceedings were instituted, a commercial, industrial or other business
establishment, or a branch office, and was cited there in proceedings arising
from business transacted by such establishment or branch office;
(3) if the action had as its object the determination of an issue
relating to immovable property situated in the State of origin;
(4) in the case of injuries to the person or damage to tangible
property, if the facts which occasioned the damage occurred in the territory of
the State of origin, and if the author of the injury or damage was present in
that territory at the time when those facts occurred;
(5) if, by a written agreement or by an oral agreement confirmed in
writing within a reasonable time, the parties agreed to submit to the
jurisdiction of the court of origin disputes which have arisen or which may
arise in respect of a specific legal relationship, unless the law of the State
addressed would not permit such an agreement because of the subject-matter of
the dispute;
(6) if the defendant has argued the merits without challenging the
jurisdiction of the court or making reservations thereon; nevertheless such
jurisdiction shall not be recognised if the defendant has argued the merits in
order to resist the seisure of property or to obtain its release, or if the
recognition of this jurisdiction would be contrary to the law of the State
addressed because of the subject-matter of the dispute;
(7) if the person against whom recognition or enforcement is sought
was the plaintiff in the proceedings in the court of origin and was
unsuccessful in those proceedings, unless the recognition of this jurisdiction
would be contrary to the law of the State addressed because of the
subject-matter of the dispute.
Article 11
The court of the
State of origin shall be considered to have jurisdiction for the purposes of
this Convention to try a counterclaim -
(1)
if that court would have had jurisdiction to try the action as a principal
claim under sub-paragraphs (1)-(6) of Article 10, or
(2) if that court had jurisdiction under Article 10 to try the
principal claim and if the counterclaim arose out of the contract or out of the
facts on which the principal claim was based.
Article 12
The jurisdiction
of the court of the State of origin need not be recognised by the authority
addressed in the following cases -
(1)
if the law of the State addressed confers upon its courts exclusive
jurisdiction, either by reason of the subject-matter of the action or by virtue
of an agreement between the parties as to the determination of the claim which
gave rise to the foreign decision;
(2) if the law of the State addressed recognises a different
exclusive jurisdiction by reason of the subject-matter of the action, or if the
authority addressed considers itself bound to recognise such an exclusive
jurisdiction by reason of an agreement between the parties;
(3) if the authority addressed considers itself bound to recognise
an agreement by which exclusive jurisdiction is conferred upon arbitrators.
chapter iii -
recognition and enforcement procedures
Article 13
The party
seeking recognition or applying for enforcement shall furnish -
(1)
a complete and authenticated copy of the decision;
(2) if the decision was rendered by default, the originals or
certified true copies of the documents required to establish that the summons
was duly served on the defaulting party;
(3) all documents required to establish that the decision fulfills
the conditions of sub-paragraph (2) of the first paragraph of Article 4, and,
where appropriate, of the second paragraph of Article 4;
(4) unless the authority addressed otherwise requires, translations
of the documents referred to above, certified as correct either by a diplomatic
or consular agent or by a sworn translator or by any other person so authorised
in either State.
If the terms of
the decision do not permit the authority addressed to verify whether the
conditions of this Convention have been complied with, that authority may
require the production of any other necessary documents.
No legalisation
or other like formality may be required.
Article 14
The procedure
for the recognition or enforcement of foreign judgments is governed by the law
of the State addressed so far as this Convention does not provide otherwise.
If the decision
contains provisions which can be dissociated, any one or more of these may be
separately recognised or enforced.
Article 15
Recognition or
enforcement of an award of judicial costs or expenses may be accorded by virtue
of this Convention only if this Convention is applicable to the decision on the
merits.
This Convention
shall apply to decisions relating to judicial costs or expenses even if such
decisions do not proceed from a court, provided that they derive from a
decision which may be recognised or enforced under this Convention and that the
decision relating to costs or expenses could have been subject to judicial
review.
Article 16
A judgment for
costs or expenses given in connection with the granting or refusal of
recognition or enforcement of a decision may be enforced under this Convention
only if the applicant in the proceedings for recognition or enforcement relied
on this Convention.
Article 17
No security,
bond or deposit, however termed under the law of the State addressed, shall be
required by reason of the nationality or domicile of the applicant to guarantee
the payment of judicial costs or expenses if the applicant, being a natural
person, has his habitual residence in or, not being a natural person, has a
place of business in a State which has concluded with the State addressed a
Supplementary Agreement in accordance with Article 21.
Article 18
A party granted
legal aid in the State of origin shall be extended such aid in accordance with
the law of the State addressed in any proceedings for the recognition or for
the enforcement of a foreign decision.
Article 19
Settlements made
in court in the course of a pending proceeding which may be enforced in the
State of origin shall be enforceable in the State addressed under the same
conditions as decisions falling within this Convention, so far as those
conditions apply to settlements.
chapter iv -
concurrent actions
Article 20
If two States
have concluded a Supplementary Agreement pursuant to Article 21, the judicial
authorities of either State may dismiss an action brought before them or may
stay such an action when other proceedings between the same parties, based on
the same facts and having the same purpose, are pending in a court of another
State and these proceedings may result in a decision which the authorities of
the State in which the first mentioned action was brought would be bound to
recognise under the terms of this Convention.
The authorities
of these States may nevertheless order provisional or protective measures
regardless of proceedings elsewhere.
chapter v -
supplementary agreements
Article 21
Decisions
rendered in a Contracting State shall not be recognised or enforced in another
Contracting State in accordance with the provisions of the preceding Articles
unless the two States, being Parties to this Convention, have concluded a
Supplementary Agreement to this effect.
Article 22
This Convention
shall not apply to decisions rendered before the entry into force of the
Supplementary Agreement provided for in Article 21 unless that Agreement
otherwise provides.
The
Supplementary Agreement shall continue to be applicable to decisions in respect
of which recognition or enforcement proceedings have been instituted before any
denunciation of that Agreement takes effect.
Article 23
In the
Supplementary Agreements referred to in Article 21 the Contracting States may
agree -
(1)
to clarify the meaning of the expression "civil and commercial
matters", to determine the courts whose decisions shall be recognised and
enforced under this Convention, to define the expression "social
security" and to define the expression "habitual residence";
(2) to clarify the meaning of the term "law" in States
with more than one legal system;
(3) to include within the scope of this Convention questions
relating to damage or injury in nuclear matters;
(4) to apply this Convention to decisions ordering provisional or
protective measures;
(5) not to apply this Convention to decisions rendered in the
course of criminal proceedings;
(6) to specify the cases under which a decision is no longer
subject to ordinary forms of review;
(7) to recognise and enforce decisions upon which enforcement could
be obtained in the State of origin even if such decisions are still subject to
ordinary forms of review and in such a case to define the conditions under
which a stay of proceedings for recognition or enforcement is possible;
(8) not to apply Article 6 if the decision rendered by default was
notified to the defaulting party and the latter had the opportunity to lodge a
timely appeal against such a decision;
(8 bis) that the
Authority addressed shall not be bound by the findings of fact on which the
court of the State of origin based its jurisdiction;
(9) to consider the courts of the State in which the defendant has
his "domicile" as having jurisdiction under Article 10:
(10) that the court of origin shall be considered as having jurisdiction under
the terms of this Convention in cases where its jurisdiction is admitted by
another Convention in force between the State of origin and the State addressed
if that other Convention contains no special rules relating to the recognition
or enforcement of foreign judgments;
(11) that the court of origin shall be considered as having jurisdiction under
the terms of this Convention either when its jurisdiction is admitted by the
law of the State addressed relating to the recognition or enforcement of
foreign judgments, or on grounds additional to those in Article 10;
(12) to define, for the purposes of the application of Article 12, the bases of
jurisdiction which are exclusive by reason of the subject-matter of the action;
(13) to exclude, in cases where jurisdiction is based on an agreement between
the parties, the application of sub-paragraph (1) of Article 12 as well as to
exclude that of sub-paragraph (3) of Article 12;
(14) to regulate the procedure for obtaining recognition or enforcement;
(15) to regulate the enforcement of judgments other than those which order the
payment of a sum of money;
(16) that the enforcement of a foreign judgment may be refused when a specified
period has elapsed from its date;
(17) to fix the rate of interest payable from the date of the judgment in the
State of origin;
(18) to adapt to the requirements of their legal systems the list of documents
required by Article 13, but with the sole object of enabling the authority
addressed to verify whether the conditions of this Convention have been
fulfilled;
(19) to subject the documents referred to in Article 13 to legalisation or to a
similar formality;
(20) to depart from the provisions of Article 17 and to depart from the
provisions of Article 18;
(21) to make the provisions of the first paragraph of Article 20 obligatory;
(22) to include within the scope of this Convention "actes
authentiques", including documents upon which immediate enforcement
can be obtained, and to specify those documents.
chapter vi -
final clauses
Article 24
This Convention
shall not affect other Conventions relating to the recognition and enforcement
of judgments to which the Contracting States are already Parties so long as
those States have not concluded a Supplementary Agreement under the terms of
Article 21.
Unless it is
otherwise agreed, the provisions of a Supplementary Agreement concluded under
Article 21 shall prevail over the terms of any prior Conventions in force
between the Parties relating to the recognition and enforcement of judgments to
the extent that their terms are mutually inconsistent.
Article 25
Whether or not
they have concluded a Supplementary Agreement under Article 21, the Contracting
States shall not conclude between themselves other Conventions relating to the
recognition and enforcement of judgments within the scope of this Convention
unless they consider it necessary, in particular, because of economic ties or
of particular aspects of their legal systems.
Article 26
Notwithstanding
the provisions of Articles 24 and 25, this Convention and the Supplementary
Agreements made under Article 21 shall not prevail over Conventions to which
the Contracting States are or may become Parties in special fields and which
contain provisions for the recognition and enforcement of judgments.
Article 27
This Convention
shall be open for signature by the States represented at the Tenth Session of
the Hague Conference on Private International Law and Cyprus, Iceland and
Malta.
It shall be
ratified and the instruments of ratification shall be deposited with the
Ministry of Foreign Affairs of the Netherlands.
Article 28
This Convention
shall enter into force on the sixtieth day after the deposit of the second
instrument of ratification.
This Convention
shall enter into force for each State which ratifies it subsequently on the
sixtieth day after the deposit of its instrument of ratification.
Article 29
Any State not
falling within the provisions of the first paragraph of Article 27 may accede
to this Convention after it has entered into force in accordance with the first
paragraph of Article 28. The instrument of accession shall be deposited with
the Ministry of Foreign Affairs of the Netherlands.
This Convention
shall enter into force for such a State in the absence of any objection from a
State which has ratified this Convention before such deposit, notified to the
Ministry of Foreign Affairs of the Netherlands within a period of six months
after the date on which the said Ministry has notified it of such accession.
In the absence
of any such objection, this Convention shall enter into force for the acceding
State on the first day of the month following the expiration of the last of the
periods referred to in the preceding paragraph.
Article 30
Any State may,
at the time of signature, ratification or accession, declare that this
Convention shall extend to all the territories for the international relations
of which it is responsible, or to one or more of them. Such a declaration shall
take effect on the date of entry into force of this Convention for the State
concerned.
At any time
thereafter, such extensions shall be notified to the Ministry of Foreign
Affairs of the Netherlands.
This Convention
shall enter into force for the territories mentioned in such an extension on
the sixtieth day after the notification referred to in the preceding paragraph.
The Parties to a
Supplementary Agreement concluded under Article 21 shall determine its
territorial application.
Article 31
This Convention
shall have a duration of five years from the date on which it enters into force
under the first paragraph of Article 28, even in its application to States
which have subsequently ratified or acceded to it.
In the absence
of any denunciation, this Convention shall be renewed tacitly every five years.
Any denunciation
shall be notified to the Ministry of Foreign Affairs of the Netherlands at
least six months before the end of the five year period.
Such
denunciation may be limited to any one of the territories to which this
Convention applies.
Such
denunciation shall affect only the notifying State. This Convention shall
remain in force for the other Contracting States.
Article 32
Each
Supplementary Agreement concluded under Article 21 shall take effect from the
date specified in such Agreement; a certified copy and, if necessary, a
translation into French or English shall be communicated to the Ministry of
Foreign Affairs of the Netherlands.
Any Contracting
State may, without denouncing this Convention, denounce a Supplementary
Agreement either under any provision for denunciation in such Agreement or, if
such Agreement contains no such provision, by giving six months' notice to the
other State. Any State denouncing a Supplementary Agreement shall so inform the
Ministry of Foreign Affairs of the Netherlands.
Notwithstanding
the denunciation of this Convention, it shall nevertheless continue to have
effect between the denouncing State and any other State with which the former
has concluded a Supplementary Agreement under Article 21, unless such Agreement
provides otherwise.
Article 33
The Ministry of
Foreign Affairs of the Netherlands shall give notice to the States referred to
in Article 27, and to the States which have acceded in accordance with Article
29, of the following -
a) the
signatures and ratifications referred to in Article 27;
b) the date on which the present
Convention enters into force in accordance with the first paragraph of Article
28;
c) the accessions referred to in
Article 29 and the dates on which they take effect;
d) the extensions referred to in
Article 30 and the dates on which they take effect;
e) a translation or a copy of the
text in English or French of Supplementary Agreements concluded under Article
21;
f) the denunciations referred to
in the third paragraph of Article 31 and the second paragraph of Article 32.
In witness
whereof the undersigned, being duly authorised thereto, have signed this
Convention.
Done at The
Hague, on the first day of February, 1971, in the English and French languages,
both texts being equally authentic, in a single copy which shall be deposited
in the archives of the Government of the Netherlands, and of which a certified
copy shall be sent, through the diplomatic channel, to each of the States
represented at the Tenth Session of the Hague Conference on Private
International Law, and to Cyprus, Iceland and Malta.
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