Keeping up with the Hague: the Australian struggle in registering judgments abroad

The human race is connected at an unprecedented level thanks to trade and technology however our judicial systems are not.

Recognition of an Australian judgment (or order) by another state is difficult.  Enforcement of a hard-won proceeding is a dream to many.

Treaties

Australia has a treaty for reciprocal recognition and enforcement of judgments and orders with the United Kingdom (and Northern Ireland), and its neighbour, New Zealand.

The Hague Convention

Australia is not a signatory to any multilateral treaties for the reciprocal recognition of judgments including the Hague Convention on Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters 1971.

The Hague Convention was designed to provide a global framework of common rules to facilitate the recognition and enforcement of judgments from one jurisdiction to another similarly remains unsigned by Australia.

The Attorney-General’s Department has supposedly pursued the Australian government’s signature to this Convention since 2012.

Australia’s policy on this front is progressing at glacier speed.

Foreign Judgments Act 1991 (Cth)

The statutory regime which apply to recognition and enforcement of foreign judgments in Australia are Foreign Judgments Act 1991 (Cth) and its rules, the Foreign Judgments Regulations 1992 (Cth).

Section 5 of the Act provides that if the Governor-General is satisfied, substantial reciprocity will be assured in relation to judgments handed down by the superior courts of the foreign jurisdiction.  There are five (5) European Union countries (out of the 27) on this list: France, Germany, Italy, Poland and Switzerland.  The remainder of the list include former British colonies and Asian countries such as Korea, Singapore and Japan.

Needless to say, the list is very short.

International judicial cooperation

In view of this limitation, the Supreme Court of New South Wales and the Federal Court of Australia have signed a Memorandum of Guidance with the Dubai International Financial Courts located in the United Arab Emirates where each court share an understanding as to the other court’s processes in an effort to assist recognition and enforcement of money judgments in each other’s jurisdictions.  The Memorandum of Guidance is not binding however it is a strong indicator of the need for cooperation between international judiciaries with a view to enhance commercial relationships.  (Side note: the current bench at the Dubai Financial Courts include the former Hon. Chief Justice French of the High Court of Australia and the former Hon. Chief Justice Martin of the Supreme Court of Western Australia).

The Supreme Court of New South Wales has reached similar Memorandums of Understanding with:

• Chief Justice of the State of New York
• Supreme Court of Singapore
• High People’s Court of Guangdong Province, the People’s Republic of China
• High People’s Court of Hubei Province, the People’s Republic of China
• High People’s Court of Shanghai, the People’s Republic of China

Fast forward

The Attorney-General’s Department is strongly urged to pursue reciprocity of recognition and enforcement of judgments:

• To instil public trust in our judicial system
• To improve our judicial and commercial reputation
• To give confidence to businesses who seek to expand their operations down under

For a nation which consists of more than 270 ethnic groups and unprecedented rates of immigration, it is bad policy to ignore the global ties of Australian citizens and local businesses.