Until the US ratifies the 2019 Hague Convention, US litigants have to jump through several hoops to enforce rulings before the English courts. The litigation can be a draining process for all involved, so a judgment ought to be cause for relief to the victors. However, a second round of the ordeal can begin if a judgment secured in one jurisdiction is not guaranteed to be enforced in another. Such is the situation between the US and the UK, where the current lack of a recognition agreement can lead to further hurdles. Goodwin partner Rebecca Wardle explains to CDR News that US parties will need to confirm that the court has jurisdiction before they litigate; otherwise, “You might obtain a favourable judgment at the US proceedings, but it is not going to be worth anything if you cannot actually enforce it in England where the assets are located.”
Wardle cautions that if the US does eventually ratify the Hague Convention, it will not be a silver bullet for US litigants and that judgments contrary to public policy or obtained under fraud will remain off limits. “A lot of the same issues apply across those two regimes. You still cannot enforce punitive damages under the Hague Judgments Convention, for example, and that restriction would apply under both regimes.” Wardle agrees that a lot of hassle can be avoided by “considering up front which countries you are going to have to enforce in so that can form part of your strategy from the outset.” Goodwin partner Emily Unger suggests that one of the easiest ways to avoid the hurdle of confirming jurisdiction is to have the parties agree to it in the early stages if lawyers can advise on the issue before it becomes a dispute. “One of the easiest ways to get jurisdiction is a contractual agreement,” she says.