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The 2019 Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters offers certainty in cross-border enforcement of judgments.

By Robert Price and Isuru Devendra

On 2 July 2019, the Hague Conference on Private International Law adopted the 2019 Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019 Hague Convention or the Convention). The Convention aims to provide a new global regime for the recognition and enforcement of civil and commercial judgments, much like the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) does with respect to arbitral awards and EU Regulation No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (the Recast Brussels Regulation) does with respect to the recognition and enforcement of civil and commercial judgments within the European Union.

If successful, the 2019 Hague Convention will provide a single uniform instrument pursuant to which civil and commercial judgments may be enforced worldwide, instead of the existing patchwork of bilateral and regional arrangements for the cross-border enforcement of court judgments. As the Minister of Foreign Affairs of the Netherlands, Stef Blok, observed, this uniform global regime would offer “certainty and legal security in cross-border transactions and litigation”. The success of the 2019 Hague Convention will depend, however, on a significant number of states ratifying and acceding to the Convention, to make its coverage as comprehensive as the New York Convention.[i]

A new UK policy establishes a commitment to providing victims of overseas bribery with compensation; however, important questions remain that will impact implementation.

By Stuart Alford QC, Nathan H. Seltzer, Joseph M. Bargnesi, Laila Hamzi, Clare Nida, and Christopher M. Ting

The UK’s Serious Fraud Office (SFO), the Crown Prosecution Service (CPS) and the National Crime Agency (NCA) have released a joint statement in support of compensation for overseas victims of bribery, corruption, and other economic crimes. As set forth in the General Principles, which were published on 1 June, the UK enforcement agencies have committed to consider whether victim compensation is appropriate in “all relevant cases,” including those resolved by prosecution, a deferred prosecution agreement (DPA), or a civil settlement. Both aggrieved governments (and their instrumentalities) and corporates facing potential bribery-related inquiries should therefore be aware that the UK government will very likely at least consider victim compensation in any bribery resolution; however practical questions remain that will impact implementation.

UK Policy

In cases resolved through prosecution, the General Principles stipulate that the CPS and SFO will seek remedies under the Proceeds of Crime Act 2002 or the Powers of Criminal Courts (Sentencing) Act 2000 for compensation. In cases resolved with DPAs or through civil settlement, the agencies agree to seek compensation as part of the agreement with the accused.

New “range of factors” test suggests broad use in future civil matters and fairer, more nuanced outcomes.

By Daniel Smith and Alanna Andrew

The High Court has applied the new fact-sensitive “range of factors” test in Harb v Aziz[i] to determine whether a defendant to a civil claim can rely on the claimant’s wrongdoing to defeat the claim. The Supreme Court adopted this new “range of factors” test in the 2016 case of Patel v Mirza[ii], which replaced the “reliance test” identified in Tinsley v Milligan (widely criticised as being too formal). See Latham’s related blog, UK Supreme Court Adopts New “Range of Factors” Approach to Defence of Illegality.

The principles of the illegality defence are that a person should not be able to benefit from their own wrongdoing, and the court should not enforce claims that harm the integrity of the legal system. The defence is potentially far reaching, particularly under the new “range of factors” test, and so its recent application will be of interest to many litigants — especially if there is evidence of a claimant’s wrongdoing.

By Stuart Alford QC, Daniel Smith and Clare Nida

The UK Supreme Court has unanimously ruled that the criminal dishonesty test in R v Ghosh is wrong and that courts should no longer follow this test. The recent decision in Ivey v Genting Casinos clarifies that the test for dishonesty in all proceedings (criminal and civil) is objective, and to be determined by reference to the standard of ordinary, decent people, without reference to whether the defendant realised that ordinary people would regard his or her conduct as dishonest.

The Facts: Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67

The claimant, a professional gambler, used a technique called “edge sorting” during a game at the defendant’s casino, in which he and his associate represented to the dealer that he was superstitious, thereby persuading the dealer to turn the cards in a way which allowed the claimant to later identify those cards in later deals. The claimant won £7.7 million, but the defendant refused to pay out on the basis that the claimant was cheating.