IPIC Commentary Regarding the Convention on Recognition and Enforcement of Foreign Judgments by the Hague Conference on Private International Law

On October 17, 2017 IPIC presented comments on the February 2017 draft convention on the recognition and enforcement of foreign judgments in civil or commercial matters by the Hague Conference on Private International Law. IPIC was asked to present comments on the latest proposed amendments to the draft convention (the “Convention”) prepared by the Special Committee of May 2018. This Submission relates to the amended Convention and answers five questions that IPIC was specifically asked to consider.

If the Convention is ratified and Canada becomes a Contracting State, we understand that it will typically remain necessary to bring proceedings before a court in the enforcing state to consider and approve the recognition and enforcement of the foreign judgment. In other words, the terms of the Convention would not eliminate the step of bringing a proceeding in a Canadian court to recognize and enforce a foreign judgment that falls within the scope of the Convention. However, the terms of the Convention confine the court’s discretion to refuse to recognize and enforce such judgments to grounds of refusal that are specified in the Convention. We also understand that the Convention does not alter a party’s ability to request recognition and enforcement of foreign judgments that are excluded from the Convention. For example, if a foreign judgment is ineligible under Article 5, but otherwise meets the test for recognition and enforcement under Canadian law, proceedings may be brought to enforce it.

As a general observation, members of IPIC have not reported that they have encountered difficulties with the enforcement of judgments (or resisting enforcement of judgments) due to the fact that the underlying proceedings related to intellectual property rights.