Legal certainty restored? What the Hague Judgments Convention means for Scotland

With the Hague Convention now in force in the UK, Dr Robbie Reid from the University of Stirling examines the new legal framework for the recognition and enforcement of foreign judgments in civil and commercial cases.

Overview

In 2024, the UK ratified the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Hague Judgments Convention 2019). This entered into force for the UK on 1 July 2025, as provided for by The Recognition and Enforcement of Judgments (2019 Hague Convention etc) Regulations 2024 (SI 2024/713).

The UK joins the EU (excluding Denmark), Uruguay and Ukraine as ‘contracting states’. Three states have additionally ratified the Convention (Albania, Andorra and Montenegro), while a further six are signatories (Costa Rica, Israel, Kosovo, North Macedonia, the Russian Federation and the US).

Broadly speaking, the Convention provides for the reciprocal recognition and enforcement of certain civil or commercial judgments between contracting states. This is the latest development in the field of private international law since the UK’s legal landscape was disrupted by Brexit.

Ratification of the Convention followed a consultation by the UK Government, which demonstrated broad support among academics and practitioners.

The implementation of this international Convention will bring about significant benefits in practice. Not only will it make the law easier to navigate and apply, it will also eliminate procedural hurdles, thereby allowing judgments to be recognised and enforced in the Scottish courts more efficiently than at present. Moreover, this will conversely assist judgment creditors in Scotland who seek recognition/enforcement in another contracting state.

This article will explain the changes made to the way judgments are recognised/enforced under Scots law. This will be done by reference to the aims and scope of the Convention; the core rules governing when a judgment from the court of one contracting state (the ‘court of origin’) may or may not be recognised/enforced in the court of another contracting state (the ‘requested court’); and the practical steps that parties must take for a judgment to be recognised/enforced in Scotland.

Previous position

Pre-Brexit, the recognition and enforcement of judgments between EU member states was regulated by a set of harmonised rules in the revised Brussels I Regulation (1215/2012). The free circulation of judgments was clearly an integral part of the EU’s single market and the regulation also harmonised direct rules on jurisdiction. 

This essentially meant that a judgment issued in one member state could be recognised/enforced in another member state with minimal exceptions, and usually without a review of the jurisdictional bias. This promoted judicial cooperation, certainty and efficiency in cross-border litigation within the EU.

Withdrawal from the Brussels regime at the end of the UK-EU Transition Period left something of a void. The Scottish courts could no longer rely on the Brussels rules and instead had to resort to a fragmented legal framework for the recognition and enforcement of judgments from the EU, essentially comprising: (i) common law rules, and (ii) the 2005 Hague Convention on Choice of Court Agreements (Articles 8 and 9).

While an explanation of these rules is beyond the scope of this work, the impact of Brexit was clear: parties seeking to rely on a judgment from an EU member state could not so easily have this judgment recognised and enforced in the Scottish courts.

The 2019 Convention is not a complete solution to this problem, due to its scope being narrower than the Brussels Ia Regulation and the review of the foreign basis of jurisdiction always being possible, but it is a major improvement on the post-Brexit position.

One important point to note is that the implementation of the Convention does not alter the position regarding intra-UK recognition and enforcement. Article 22 enables states “in which two or more systems of law apply in different territorial units” to deviate from the rules of the Convention in cases where the court of origin and requested court are both in the same contracting state (Article 22(2)). 

In the UK context, such cases will continue to be regulated by Sections 18 and 19 and Schedules 6 and 7 of the Civil Jurisdiction and Judgments Act 1982, which have a much more automatic type of recognition and enforcement than even the Brussels regulation. This additionally means that where a judgment is recognised or enforced in one jurisdiction of the UK, it will not automatically be recognised or enforced in another UK jurisdiction (Article 22(3)).

Hague Judgments Convention 2019

The 2019 Convention simplifies this piecemeal legal framework and will now be the governing instrument in many civil or commercial recognition/enforcement cases. Below is an outline of the key features of the Convention, including its aims and scope; its core provisions (mostly found in Articles 4-7); and its procedure under Scots law.

1. Aims and Scope

At the heart of the Convention is its central aim to “promote effective access to justice for all and to facilitate rule-based multilateral trade and investment, and mobility, through judicial cooperation”, which should enhance predictability and certainty in the circulation of foreign judgments.

Consistent with this, Article 20 provides that in the interpretation of the Convention, regard must be had to its international character and to the need to promote uniformity in its application. Authoritative guidance on the interpretation of the Convention is provided in the Explanatory Report written by Francisco Garcimartín and Geneviève Saumier and then approved by the members of the Hague Conference on Private International Law (HCCH) – the international organisation through which the Convention was concluded, by consensus.

As with the Brussels regulation, the Convention is limited to civil or commercial matters (Article 1), which is given an autonomous meaning. In particular, the Convention does not apply to revenue, customs or administrative matters.

However, various areas that may conceivably fall within the ambit of ‘civil and commercial’ are expressly excluded from the scope of the Convention (Article 2), thereby limiting its potential reach. This is either because specific provision is made in other instruments for these matters (eg certain parts of family law; wills and succession) or because the drafters of the Convention were unable to reach consensus (eg carriage of passengers and goods; defamation; privacy; marine pollution; intellectual property; certain anti-trust issues). It is anticipated that courts of contracting states may need to grapple with questions of characterisation in identifying whether a judgment falls within the Convention’s ambit or not.

As for the types of judgments covered, the Convention adopts a broad definition. This includes “any decision on the merits given by a court, whatever that decision may be called, including a decree or order, and a determination of costs or expenses of the proceedings by the court (including an officer of the court), provided that the determination relates to a decision on the merits which may be recognised or enforced under this Convention” (Article 3). 

However, there are two important qualifications to note: “an interim measure of protection is not a judgment” (Article 3), while a judgment awarding non-compensatory (including punitive or exemplary) damages may be refused recognition/enforcement by the requested court to the extent that the judgment does not compensate a party for actual loss or harm suffered (Article 10).

2. Key provisions

The Convention operates in both a positive and a negative sense. For a judgment to be recognised/enforced, it must originate from a contracting state and be enforceable in that state (Article 4(3)); fall within the scope outlined above; and meet one of the ‘jurisdiction filters’ (or ‘indirect jurisdiction’ rules) in Articles 5 and 6.

It is not for the requested court to review the merits of the judgment (Article 4(2)). Rather, the court must be satisfied that the court of origin itself had an acceptable jurisdictional base for adjudicating on the case.

The jurisdiction filters provided in Articles 5 and 6 ensure an appropriate link between the court of origin and the legal dispute between the parties which led to the judgment. While not possible to provide a full list of the grounds here, some of the key ones to note include: the judgment debtor’s habitual residence, principal place of business, branch, agency or other establishment; express consent to the jurisdiction of the court of origin; designation of the court of origin in a non-exclusive jurisdiction clause; place of performance of a contractual obligation; place where the act or omission directly causing harm arising from a non-contractual obligation occurred (Article 5(1)).

While these rules provide a basis on which a judgment shall be prima facie recognised and enforced, the Convention operates as a floor rather than a ceiling, providing a minimum level of harmonisation. This principle is embodied in Article 15, which expressly provides that the Convention “does not prevent the recognition or enforcement of judgments under national law”.

The only exception to this is in respect of judgments concerning rights in rem in immovable property. These can only be recognised/enforced where the relevant property is located in the state of origin (Article 6).

Despite the Convention largely replicating the indirect jurisdiction bases in the common law in Scotland, it offers several more bases of indirect jurisdiction, notably the contract- and delict-based jurisdictions, which are not available at common law. The inclusion of such bases represents a notable improvement on existing common law rules, exemplifying a more expansive approach to the recognition/enforcement of judgments under the Convention: see Beaumont, Some Reflections on the Way Ahead for UK Private International Law After Brexit (2021).

The Convention also operates in a negative sense, by providing limited grounds on which the requested court may refuse to recognise/enforce a judgment, even where the jurisdiction filters are satisfied. Article 4(1) provides that these are the only grounds on which a judgment may be refused recognition by the requested court. These are set out in Article 7 and may be considered typical grounds of refusal: lack of notice given to the defendant, judgment obtained by fraud, contrary to public policy, contrary to a jurisdiction agreement and res judicata (Article 7(1)). 

Moreover, recognition and enforcement may be postponed or refused where there is a risk of an irreconcilable judgment being given by another court of the requested state, so long as this court was seised before the court of origin and the requested state has a close connection to the dispute (Article 7(2)).

3. Procedure under Scots law

How then does the Convention operate in practice? Articles 12 and 13 of the Convention make provision for certain procedural matters. Article 12 sets out the documents required to be produced by the party seeking recognition/enforcement (including a certified copy of the judgment and proof of its enforceability within the state of origin), while Article 13 provides that the procedure for the recognition/enforcement of a judgment is to be governed by the law of the requested state, but that the requested court “shall act expeditiously”.

In giving effect to the Convention, existing Scottish procedural rules were therefore modified. An Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Miscellaneous) 2025 (SSI 2025 No 80) amended the relevant Rules of the Court of Session (Part V of Chapter 62), while The Recognition and Enforcement of Judgments (2019 Hague Convention etc) Regulations 2024 (SI 2024/713) inserted new Sections 4C and 6C into the Civil Jurisdiction and Judgments Act 1982.

When seeking to have a judgment from another contracting state recognised/enforced in Scotland, an application must first be made to the “appropriate court” (Section 4C(1)), which is the Court of Session (Section 4C(2)(b)).

The Court of Session is required to register the judgment without delay and, notably, without reviewing whether a ground for refusal under the Convention applies if it is satisfied that the requirements in Section 4C(3) are met. These are that the “requirements of Article 12 [of the Convention] have been met”, and the judgment “meets the condition in Article 4(3)”, “meets at least one of the requirements of Articles 5 or 6” and “otherwise meets the requirements for recognition or enforcement” under the Convention.

At this stage, “the party against whom enforcement is sought shall not be entitled to make any submission on the application for registration” (Section 4C(4)), thereby showing the emphasis placed on the procedure being ‘expeditious’.

Notwithstanding the clear benefits of this to the judgment creditor, Section 6C provides a mechanism through which the judgment debtor may challenge the Court of Session’s registration of a judgment. Once notified of registration under Section 4C, the onus lies on them to satisfy the court that the registration should be refused. This can be done by either showing that one of the requirements noted above in Section 4C(3) were not met (Section 6C(3)(a)) or that “one or more of the grounds for refusal or postponement of recognition or enforcement of a judgment specified in the 2019 Hague Convention applies” (Section 6C(3)(b)).

This procedure should be a reasonably straightforward and streamlined one in which parties can register judgments for recognition/enforcement without undue delay or hurdles. This initially gives effect to the principles of the Convention and favours the judgment creditor, while the second stage balances this against the interests of the judgment debtor, who has the opportunity to challenge registration should they have a legal basis for doing so.

Moreover, it should be noted that in addition to improving the procedure by which a judgment from another contracting state may be recognised/enforced in the Court of Session, provision is made to facilitate Scottish judgments being expeditiously recognised/enforced in another contracting state, thereby benefiting judgment creditors in Scotland: see the Rules of the Court of Session 1994, rule 62.40 (as amended by the above Act of Sederunt (SSI 2025 No 80) referred to above) for further detail.

Concluding comments

By closely engaging with the HCCH and implementing the 2019 Convention, the UK has taken steps to limit the impact that Brexit had on judicial cooperation with the EU. The implementation of the Convention in Scots law will bring about welcome benefits in terms of efficiency, costs and access to justice for litigants in Scotland (all of which are recognised as aims of the Convention), the impact of which will be most strongly felt in cross-border litigation involving our closest trading partner: the EU.

In addition to this, the Convention provides a broad basis through which judgments may be recognised/enforced, by including a range of indirect jurisdiction bases that are not available at common law in Scotland.

It is hoped that other states continue to become parties to the Convention to ensure it meets its aim of achieving increased global cooperation. However, it remains the case that other legal instruments (including common law rules) will continue to be part of the legal framework governing the recognition and enforcement of judgments. 

The 2019 Convention is therefore another set of rules to add to the list of those that practitioners must contend with when dealing with such cases.