Intergovernmental Efforts to Prepare a Convention on Jurisdiction
and the Enforcement of Judgments

Peter H. Pfund
Special Adviser for
Private International Law
U.S. Department of State

Over forty countries are currently engaged in intergovernmental negotiations to produce a convention (multilateral treaty) on jurisdiction and the recognition and enforcement of foreign civil judgments (including torts and contracts). The negotiations are under the auspices of the Hague Conference on Private International Law. The participating countries represent many different legal systems and stages of economic development and include the United States, Canada, Australia and Ireland, all 15 Member States of the European Union, as well as China, Japan, Israel, Egypt, Morocco and a number of Latin American and Eastern European countries.

The convention is to offer a regime governing jurisdiction to sue defendants from party states and providing predictability with regard to the enforcement of resulting judgments. The United States is not a party to any treaty providing for the enforcement abroad of judgments issued by courts in the United States. A broadly accepted convention could have profound beneficial effects on international commercial transactions for the "middle class" litigant who may have substantial international business dealings, but a claim that does not lend itself to arbitration or justify the hiring of attorneys for protracted litigation in more than one country.

The negotiations at The Hague involve complex and serious legal issues. As the goal is to regulate available bases of jurisdiction as well as to provide rules for recognizing and enforcing judgments, the effort involves bridging the substantial differences in approaches to general and specialized jurisdiction of common law and civil code countries. In addition to requiring agreement on required and prohibited grounds of jurisdiction and on their definition, issues such as maintaining the option of courts to decline jurisdiction (forum non conveniens), lis pendens, provisional and protective measures, governmental entities as parties, multiple plaintiffs and defendants, punitive and "excessive" damages, the requirement for fairness and independence of the court that rendered the judgment to be enforced, a public policy exception to enforcement, how the convention will work in non-unified countries like the United States, are but some of the more complex problems to be resolved.

The Department of State is consulting with the U.S. private legal and business sectors through meetings of a specialized study group of the Secretary of State's Advisory Committee on Private International Law that are announced in the Federal Register and open to the public. The U.S. delegation to sessions at The Hague includes practicing attorneys, representatives of national legal organizations and distinguished legal scholars in this field, as well as government attorneys from the Justice and State Departments.

The three two-week sessions of a special commission of the Hague Conference that have taken place since June 1997 have resulted in a partial, heavily bracketed, preliminary text of some of the provisions of a convention that was produced by the special commission's drafting committee on the basis of discussions and proposals on many issues submitted by government delegations. A further meeting of the State Department's study group is scheduled for May 7 in preparation for the fourth session of the special commission in June 1999. The final three-week diplomatic session of the Hague Conference on this project, scheduled for October 2000, is expected to adopt the final text that will be opened for signature and ratification by states.

If the United States is to become a party to the convention, the enactment of federal implementing legislation will be necessary. Assuming that the convention's advantages are generally deemed to outweigh its possible disadvantages, such legislation will be needed, in addition to Senate advice and consent to U.S. ratification, to deal with the details of implementation of the convention in the United States. While not even the outlines of the convention are firm at this time, work in the near future focused on the kinds of issues and problems that would need to be addressed in such federal legislation would be extremely useful to help the U.S. delegation negotiating at The Hague, through awareness of those issues, to seek convention provisions that would avoid insuperable problems for the United States and would lend themselves to effective implementation in this country.

jmalileg.499

April 1999