Academic journal article Australian International Law Journal

The Judgments Project: A Review of the Hague Conference on Private International Law's Work in Progress

Academic journal article Australian International Law Journal

The Judgments Project: A Review of the Hague Conference on Private International Law's Work in Progress

Article excerpt

I Introduction

A. Defining the Judgments Project

The 'Judgments Project' is an ambitious enterprise undertaken by The Hague Conference on Private International Law over the past two decades. It involves the strengthening of two key aspects of cross-border litigation in civil and commercial matters: the international jurisdiction of courts, and the recognition and enforcement of their judgments abroad. (1) The specific objectives of the Project consist of: (2)

1. Ensuring that civil proceedings are heard in the appropriate forum, consistent with the fair and efficient determination of disputes;

2. Reducing uncertainty in relation to the forums in which disputes will be heard and determined, and reducing the costs associated with disputes as to which forum litigation should be held in and;

3. Facilitating the international enforcement of judgments rendered by an appropriate court, thus enhancing the certainty and finality of cross border litigation.

B. Creating an International Framework for Private Law

Broadly speaking, the raison d'etre of the Judgments Project is the facilitation and further integration of cross border private law, both in the ambit of civil matters and trade. The project seeks to achieve this integration through the development of a legal framework for private law litigation that is both global and consistent in its reach. This framework is built on multilateral conventions developed by The Hague Conference, to which sovereign states accede via domestic ratification. (3) The ultimate objective of this process is greater access to justice for international litigants, as well as an enhancement of the quality and consistency of justice in cross border litigation.

C. Context of the Project

The Judgments Project is an ongoing enterprise. Work on the recognition of the international jurisdiction of courts and the enforcement of foreign judgments has been central to the agenda of the Hague Conference for over twenty years. (4) The enduring presence of the project reflects the recurring regulatory challenges that arise under increasingly interconnected global conditions. The period over which the project has matured has itself seen continuous increases in cross border trade and the movement of people. In the sphere of litigation, these conditions mean that civil and commercial disputes increasingly stretch across the borders of sovereign states, penetrating a vast and diverse range of national legal jurisdictions. (5) Thus in many ways the project can be seen as a supranational attempt at bringing the integration of private international law up to speed with aspects of civil and commercial life that are already well and truly integrated at a global level.

D. Scope of this Article

This article is divided in to four parts.

1 Background and Progress of the Judgments Project

Part II begins by offering a brief history of the Judgments Project: from its origins, to the limited progress made in negotiations, and the compromised finalisation of the Hague Convention of 30 June 2005 on Choice of Court Agreements ('Choice of Court Convention'). (6) Through a discussion of the features of the Choice of Court Convention, as well as its restricted application and slow adoption globally, this part will suggest that the project remains very much a work in progress, with various factors impeding its growth. These factors are canvassed in parts III and IV, where attention is drawn to the potential barriers faced by the Judgments Project as it attempts to expand its influence internationally.

2 Relationship with Arbitration in Cross Border Disputes

Part III of this article identifies one of the major barriers to the expansion of the Judgments Project; the unrivalled dominance of arbitration within the sphere of private international dispute resolution. This dominance, it submits, is largely due to the ubiquitous adoption of the New York Arbitration Convention (1958), (7) which has seen arbitral awards granted under it almost unanimously enforceable at a global level. …

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