Recognition and Enforcement: The 2007 Hague Convention
Importance of the indirect rules on jurisdiction of the 2007 Hague Convention
Before briefly summarising the process of recognition and enforcement under the 2007 Hague Convention, a few words should be said on the interplay of the indirect rules on jurisdiction of the 2007 Hague Convention and the jurisdiction rules of the Maintenance Regulation. This interplay may affect the prospects for recognition and enforcement of decisions given in European Union Member States in a non-European Union Contracting State to the 2007 Hague Convention.
As stated above, the 2007 Hague Convention does not include any direct rules on jurisdiction. Nonetheless, the Convention’s provisions on recognition and enforcement are based on the idea that only decisions made by an authority considered competent to render a decision due to a certain link with the case will have to be recognised and enforced, see the indirect rules on jurisdiction in Article 20 of the Convention. Apart from that, the negative rule on jurisdiction in Article 18 of the Convention (which equals Article 8 of the Maintenance Regulation) can play a role at the recognition and enforcement stage, see Article 22 f).
If the recognition and enforcement of a decision rendered in a court of a European Union Member State is sought in a non-European Union Contracting State to the 2007 Hague Convention, the decision may not be recognised and enforceable under the Convention in case the court of origin based its jurisdiction on a ground of jurisdiction not “supported” by the 2007 Hague Convention.
Such a scenario is possible, since not all grounds for jurisdiction referred to in the Maintenance Regulation find an equivalent in the indirect rules on jurisdiction of the 2007 Hague Convention. Besides smaller differences (such as that the Convention does not provide an equivalent to Article 2(3) of the Regulation according to which the reference to ‘nationality’ in the jurisdiction rules is to be understood as reference to ‘domicile’ for certain States), it should be noted that, in particular, the following rules on jurisdiction of the Maintenance Regulation have no equivalent in Article 20 of the 2007 Hague Convention: the subsidiary jurisdiction and the forum necessitatis.
Furthermore, Contracting States to the 2007 Hague Convention can make a reservation regarding a number of the indirect jurisdiction rules in Article 20, as a result of which even some further grounds of jurisdiction of the Maintenance Regulation (for example jurisdiction founded by agreement) may not be “supported” by the 2007 Hague Convention in relation to the relevant State, see for details Article 20 of the Convention.
Hence, when bringing a maintenance claim in a European Union Member State in cases where there is a likelihood that somewhere in the future the requested maintenance decision might have to be enforced in a State outside the European Union it can be important to consider whether the jurisdiction chosen is “supported” by the 2007 Hague Convention or other instruments that might assist the enforcement in the non-European Union Member State.