Malta to Apply the 2019 Hague Judgments Convention by 1st September 2023

Malta, as a European Union (‘EU’) Member State, is bound to apply the 2019 Hague Convention on Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, also known as the Hague Judgments Convention, from the 1st of September 2023. This Convention, concluded on the 2nd of July 2019 by the Hague Conference on Private International Law, pertains to one of the three fundamental pillars of private international law, that is, the recognition and enforcement of foreign judgments. The main objective of this legal instrument is to enhance cross-border transactions, ensure legal certainty and improve access to justice on a global level. Ensuring international judicial cooperation minimises risks, costs and time wasting in cross-border dispute resolution, facilitating international trade, movement and investment.

According to the Hague Judgments Convention, a Contracting State, also known as the Requested State, is bound to recognise and enforce judgments delivered by another Contracting State, also referred to as the State of Origin. The relationship between these two states is characterised by reciprocity. The scope of this Convention is exclusively limited to civil and commercial judgments and precludes in an express manner judgments dealing with revenue, customs or administrative issues. Subject-matters of a technical nature falling within the remit of more specialised treaties like family matters and succession, amongst other areas, are not tackled in this instrument. Moreover, issues which are dealt with in a conflicting manner between different legal orders, as is the case with insolvency and privacy issues, for instance, are also precluded from the Convention’s ambit. The Convention provides for these exceptions as differences in policy serve as an obstacle to the enforcement and recognition of judgments in other states. It is worth noting that recognition and enforcement of a foreign judgment can still take place under national law in the case where, for example, a judgment is precluded from the scope of the Convention. In this way, the Convention and the national legal order operate simultaneously in that one can rely on both structures depending on what best suits his legal needs.

This international framework provides for the refusal of recognition and enforcement on the basis of particular circumstances which are intended to be interpreted strictly so as to favour enforcement. The grounds for refusal include, for example, breach of public policy, insufficient notification and service of claim to the defendant and attainment of judgment by fraud. Refusal cannot occur on the premise that recognition or enforcement should take place in another state. Unless the Convention states otherwise, the law of the Requested State is to regulate the process of recognition and enforcement of foreign judgments.

To ensure a smooth transition with the coming into force of this Convention, the latter is applicable if the Convention was in effect between the State of Origin and the Requested State during the period when the proceedings were instituted in the former state. This framework, which takes on a more general nature, makes it clear that it does not seek to replace but rather to compliment other treaties, including the more specific regional or bilateral agreements, entered into before or after the Convention. Thus, it is important to note that despite the fact that the EU has acceded to this Convention as the first Contracting Party, with Ukraine following its lead, EU Member States, including Malta, are still bound by what is referred to as the Brussels Recast Regulation dealing with jurisdiction and the recognition and enforcement of judgments in civil and commercial matters within the EU sphere. This is because the Hague Judgments Convention caters solely for judgments which require recognition and enforcement outside the EU, or recognition or enforcement of non-EU judgments within the EU. In this way, if this Convention attracts further approval among states, its role in enriching cross border litigation on an international plane is bolstered significantly in the absence of geographical limitations as is the case with instruments like the Brussels Recast Regulation and the Lugano Convention, which are restricted to EU Member States and the European Free Trade Association Member States, respectively.