Last month the November 2017 draft Hague Judgments Convention was published by the Hague Conference Special Commission following the third meeting of the Special Commission in the Hague between the 13th and 17th of November.

The draft Convention is part of the Hague Conference on Private International Law “Judgments Project” which is aimed at developing a convention on the international jurisdiction of courts and the recognition and enforcement of their judgments abroad. The question of whether IP judgments are included in the scope of the Convention remains under discussion. The EU delegation is in favour of including IP judgments, primarily in order to simplify enforcement in relation to online infringement and cross-border cases. However, many industry groups are actively involved in the discussions and some argue that some (e.g. patents) or all IP judgments should be removed from scope.

In the November 2017 draft (which updates the earlier February 2017 draft), all intellectual property and “analogous” matters remain potentially excluded from the scope of the Convention (although this is still being debated). The November 2017 draft also includes a new Article 19 which allows contracting states to choose whether to apply the Convention to a specific matter (e.g. IP) where it has a strong interest in not applying the Convention to that matter.

If IP judgments are ultimately included, based on the current draft, it would mean that:

  • judgments on an IP infringement in the contracting state in which the right is registered (or, where the right is unregistered, where protection is claimed);
  • judgments on the registration or validity of a registered IP right from the contracting state in which the right is registered; and
  • judgments on validity, subsistence or ownership of copyright or an unregistered trade mark or design, from the contracting state for which protection is claimed;

are eligible for recognition and enforcement in another contracting state. However, under Article 11 of the draft Convention (also still under discussion) a judgment ruling on infringement shall be recognised and enforced only to the extent it rules on a monetary remedy in relation to harm suffered in the state in which the judgment was given.

The Special Commission has said it will recommend to the Hague Conference Council on General Affairs and Policy at its March 2018 meeting that it have a further meeting in mid-2018 to discuss the current draft and that a Diplomatic Session will be convened in mid-2019.