There is some good news to report today: the United States has signed the 2019 HCCH Judgments Convention, becoming the sixth signer (after Uruguay, Ukraine, Israel, Costa Rica, and Russia). No state has yet ratified the Convention, and it is not in force, but the US signature is important, because it signals US commitment to a multilateral, rules-based judgments recognition system that, after all, the United States was instrumental in negotiating. The self-interested case for US signature and ratification is simple: we recognize and enforce foreign money judgments quite liberally, but our own judgments often do not receive the same liberal treatment abroad. So by entering into an agreement that incorporates ground for refusing recognition that are quite similar to the grounds existing in US law, we give up nothing and we gain greater recognition for US judgments.
Today’s positive news gives me a chance also to discuss the war in Ukraine a bit. I have avoided writing anything about it because I’ve been writing less about politics generally, for reasons I could give in another post. But it is worth pointing out, when we think about the kind of lawless aggression that Russia is committing today, that the rule of law provides an alternative to the rule of force. Our friends in the world of public international law and diplomacy are helping to make that clear at the United Nations and in the councils of the EU and NATO, and of course the US and its allies are making it clear through the use of sanctions that Russia will pay a heavy price for what it has done. But we in the world of private international law have a role to play, too, by creating a pathway for governments to work together to let people from different civilizations with different legal traditions accomplish things together in the world of business, family life, access to justice, and other spheres with as few barriers as possible. The community of lawyers, judges, diplomats and academics who come up with agreements like the Judgments Convention and who promote them—some of whom are Russian—pose an ideological challenge to the Putins of the world. This, by the way, is one of the reasons it is so important in this time to keep up our collegial relationships with Russians of goodwill who are not actively supporting their government’s war.
The US decision to sign the Convention raises an interesting question: has there been an agreement among the advocates among the differing views within the United States about how the Convention on Choice of Court Agreements and the Judgments Convention should be implemented in US law? Long-time readers will know that US judgment recognition law is almost exclusively state, not federal, law (the SPEECH Act, limiting recognition of foreign defamation judgments, is the notable exception), but US law on recognition of arbitral awards is primarily federal law. There are various positions, and I’ve long thought that it would be difficult for the Judgments Convention to go anywhere until there is some agreement on implementation. I will try to learn more about this, and if I do, I’ll report it here.