Artigo escrito pelo juiz federal Marcelo De Nardi e pela advogada Nadia de Araujo.

The Hague Conference on Private International Law has signed the Final Act of a new international convention designed to circumvent the usual obstacles to the international circulation of judgments. The 2019 Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters aims at mitigating uncertainties and risks associated with international trade and other civil relationships by setting forth a simple and safe system according to which foreign judgments can easily circulate from country to country. The purpose of this article is to record the historical moment of the negotiations that took place at The Hague Conference, as well as to pinpoint how consumer cases will be dealt with by the Convention, as regulated in Article 5(2).

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 NOTES

1. ‘We estimate that by 2021 there will be over two billion people shopping online and of course there are more and more people coming online all the time’. Laurent (https://www.wto.org/english/news_e/news19_e/trdia_06may19_e.htm . Accessed 26 Nov 2019" href="https://link.springer.com/article/10.1007/s40802-020-00156-5#ref-CR9" id="ref-link-section-d13884e368" style="box-sizing: inherit; background-color: transparent; color: rgb(163, 69, 201); text-decoration: underline; text-decoration-skip-ink: auto; overflow-wrap: break-word; word-break: break-word;">2019).

2. For a comprehensive analysis of international cooperation, see McClean (2012).

3. ‘Over the more than 20 years that the HCCH has been working on these issues, the links between States have become both broader and deeper. The frequency with which individuals move across borders, including as workers, the extent of cross-border consumer dealings, and also of course the frequency and scale of commercial transactions across borders, have all been increasing rapidly. The need to which the Judgments Project is responding has as a result become even greater than at the time of the project’s inception’. Goddard (2019), p. 478.

4. For a brief history of The Hague Conference see Van Loon (2015). Today, the HCCH has 83 Members, 82 States and 1 Regional Economic Integration Organization (the EU), and a more globalized outlook. A glance at the HCCH’s website (https://www.hcch.net) demonstrates the codification activity and the organisation’s new outreach: having started with 16 members in the 1950s, the HCCH grew to 35 in the 1990s, then to 47 in the 2000s and has now reached the impressive number of 83 Member States.

5. For more information on the work carried out by the Working Group and on the Judgments Project in general, see: https://www.hcch.net/en/projects/legislative-projects/judgments (accessed on 10 November 2019).

6. For instance, see the parallel drawn by Paul Beaumont between the issue of recognition of foreign judgments and Brexit: ‘The decision of a majority of the UK to vote to leave the European Union on Thursday 23 June 2016 means that in the not too distant future the UK will not be a Member State of the European Union. This is likely to have the consequence that once the UK has left the Union it will not apply the Brussels I Regulation or the Lugano Convention to provide for recognition and enforcement of judgments from courts in the EU and in the Lugano Contracting States and vice versa. Clearly the Brussels I Regulation will not apply to a State outside the EU—apart from transitional arrangements for cases already in the pipeline at the time of the UK exit from the EU—and the Lugano Convention is not likely to be a model acceptable to a newly liberated UK […]. It may very well be the case that the future Hague Convention on Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, alongside the 2005 Convention, will be the best basis for ensuring appropriate recognition and enforcement of judgments from UK courts in other States in the EU and the current Lugano Contracting States and vice versa.’ Beaumont (https://www.abdn.ac.uk/law/documents/CPIL_Working_paper_2016_3_revised.pdf . Accessed 26 Nov 2019" href="https://link.springer.com/article/10.1007/s40802-020-00156-5#ref-CR3" id="ref-link-section-d13884e445" style="box-sizing: inherit; background-color: transparent; color: rgb(163, 69, 201); text-decoration: underline; text-decoration-skip-ink: auto; overflow-wrap: break-word; word-break: break-word;">2016).

7. Explanatory Report by Hartley and Dogauchi (https://www.hcch.net/en/publications-and-studies/details4/?pid=3959 . Accessed 18 Feb 2017" href="https://link.springer.com/article/10.1007/s40802-020-00156-5#ref-CR8" id="ref-link-section-d13884e464" style="box-sizing: inherit; background-color: transparent; color: rgb(163, 69, 201); text-decoration: underline; text-decoration-skip-ink: auto; overflow-wrap: break-word; word-break: break-word;">2013).

8. Explanatory Report by Hartley and Dogauchi (https://www.hcch.net/en/publications-and-studies/details4/?pid=3959 . Accessed 18 Feb 2017" href="https://link.springer.com/article/10.1007/s40802-020-00156-5#ref-CR8" id="ref-link-section-d13884e471" style="box-sizing: inherit; background-color: transparent; color: rgb(163, 69, 201); text-decoration: underline; text-decoration-skip-ink: auto; overflow-wrap: break-word; word-break: break-word;">2013), p. 785: ‘[…] it became apparent as work proceeded that it would not be possible to draw up a satisfactory text for a “mixed” convention within a reasonable period of time. The reasons for this included the wide differences in the existing rules of jurisdiction in different States and the unforeseeable effects of technological developments, including the Internet, on the jurisdictional rules that might be laid down in the Convention. […]’.

9. Spitz (2019), pp. 227–228; Spitz (2018); De Nardi (2017), pp. 77–94; Araujo and De Nardi (2016), p. 714.

10. HCCH, 2019 Draft Convention. Available at: https://assets.hcch.net/docs/806e290e-bbd8-413d-b15e-8e3e1bf1496d.pdf (accessed on 10 November 2019).

11. Art. 5(1)(a) of the Convention.

12. Art. 5(1)(d) of the Convention.

13. Art. 5(1)(c, e, f, l or m) of the Convention.

14. Art. 5(1)(g) of the Convention.

15. Art. 5(1)(j) of the Convention.

16. Art. 4(1) of the Convention.

17. The wording of Art. 7(1)(c) uses the term ‘manifestly’ requiring a more stringent qualification of the public policy exception.

18. ‘[…] most consumer transactions are like to be the type of high volume, low value transaction for which the opportunity to go to court, even when that court is a local forum applying the consumer’s own law, may not really be an advantage when the economics of litigation do not justify the resulting costs. This is particularly so when, in a cross-border transaction, the second step of recognition and enforcement in a foreign jurisdiction is likely to be required’. Brand (2013), p. 280.

19. ‘Article 5—Bases for recognition and enforcement […]

    2. If recognition or enforcement is sought against a natural person acting primarily for personal, family or household purposes (a consumer) in matters relating to a consumer contract, or against an employee in matters relating to the employee’s contract of employment–

    (a) paragraph 1(e) applies only if the consent was addressed to the court, orally or in writing;

    (b) paragraph 1(f), (g) and (m) do not apply’.

20. For an example of such a seller’s or supplier’s tortious responsibility that is not covered by the Convention, see the German Reichsgericht Linoleumrollen case of 1911 (RGZ 78, 239 VI. Civil Senate [VI 240/11] JW 1912, 191). A summary in English is available in Lawson and Markesinis (https://law.utexas.edu/transnational/foreign-law-translations/german/case.php?id=807 . Accessed 6 Nov 2019" href="https://link.springer.com/article/10.1007/s40802-020-00156-5#ref-CR10" id="ref-link-section-d13884e618" style="box-sizing: inherit; background-color: transparent; color: rgb(163, 69, 201); text-decoration: underline; text-decoration-skip-ink: auto; overflow-wrap: break-word; word-break: break-word;">2005).

21. This expression was used in Art. 3(2) to define corporate entities by excluding natural persons.

22. BRAZIL. Law 8.078, 11 September 1990. Code of Consumer Defence and Protection. PROCONRJ: unofficial translation from the Brazilian Portuguese legally binding original. Rio de Janeiro, RJ, 2014, available at: https://www.procon.rj.gov.br/index.php/publicacao/listar/5/1 (accessed on 7 November 2019).

    ‘Art. 2. A consumer is any physical person or corporate entity who acquires or uses a product or service as a final user.’

23. ‘Article 6—Exclusive basis for recognition and enforcement

    Notwithstanding Article 5, a judgment that ruled on rights in rem in immovable property shall be recognised and enforced if and only if the property is situated in the State of origin.’

24. Such as Art. 7(2) of the EU Brussels II Recast Regulation [2012] OJ L 351/1–32.

25. ‘Article 5—Bases for recognition and enforcement

    1. A judgment is eligible for recognition and enforcement if one of the following requirements is met—[…]

    (f) the defendant argued on the merits before the court of origin without contesting jurisdiction within the timeframe provided in the law of the State of origin, unless it is evident that an objection to jurisdiction or to the exercise of jurisdiction would not have succeeded under that law;

    (g) the judgment ruled on a contractual obligation and it was given by a court of the State in which performance of that obligation took place, or should have taken place, in accordance with.

    (i) the agreement of the parties, or.

    (ii) the law applicable to the contract, in the absence of an agreed place of performance,

    unless the activities of the defendant in relation to the transaction clearly did not constitute a purposeful and substantial connection to that State; […]

    (m) the judgment was given by a court designated in an agreement concluded or documented in writing or by any other means of communication which renders information accessible so as to be usable for subsequent reference, other than an exclusive choice of court agreement.

    For the purposes of this sub-paragraph, an “exclusive choice of court agreement” means an agreement concluded by two or more parties that designates, for the purpose of deciding disputes which have arisen or may arise in connection with a particular legal relationship, the courts of one State or one or more specific courts of one State to the exclusion of the jurisdiction of any other courts.’

26. Para. 230 of the draft Explanatory Report for the Convention states: ‘Paragraph 2(a) limits the effect of paragraph 1(e) in relation to express consent given in the course of proceedings. Where employees and consumers are concerned, the consent is required to have been “addressed to the court, orally or in writing”. In other words, in the examples provided above to illustrate paragraph 1(e) […], the first and second would not satisfy paragraph 2(a) but the third one would, it being the only situation where the expression of consent was directed at the court and not at the other party’. Garcimartín Alférez and Saumier (https://assets.hcch.net/docs/7d2ae3f7-e8c6-4ef3-807c-15f112aa483d.pdf . Accessed 21 Feb 2020" href="https://link.springer.com/article/10.1007/s40802-020-00156-5#ref-CR6" id="ref-link-section-d13884e778" style="box-sizing: inherit; background-color: transparent; color: rgb(163, 69, 201); text-decoration: underline; text-decoration-skip-ink: auto; overflow-wrap: break-word; word-break: break-word;">2018). The Explanatory Report was still subject to a final revision at the time of writing.

27. As stated in Art. 1(1) of the Convention.

28. Record of introductory remarks of the chair of the special commission (1–9 June 2016), available only in the secure portal of the HCCH’s website for the time being. Mimeo with the authors.

29. Ibid.