헤이그 국제사법회의의 외국재판의 승인 및 집행에 관한 협약 -2017년 2월 협약수정안 소개-

Abstract

The second Special Commission meeting on the Judgments Project held at Hague from 16 to 24 February 2017 reviewed and discussed all provisions in the June 2016 preliminary draft Convention and then prepared a revised draft of the Convention (“the February 2017 draft Convention”). Although there will be another third Special Commission meeting to be held in November of 2017 for further discussions of some remaining issues, the February 2017 draft Convention has reflected substantial revisions of the June 2016 preliminary draft Convention and outcome of the discussions. It is worth of analyzing the draft Convention to launch a discussion among scholars in Korea. This article provides a critical overview of the February 2017 draft Convention as comparing with 1999 and 2001 Preliminary Drafts Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters and 2005 Hague Convention on Choice of Court Agreement. It further compares with the present Korean laws and cases to some extent. It appears that many scholars approve of the decision to opt for a “simple” convention, limited to recognition and enforcement of judgments and without rules on direct jurisdiction. This author also wholeheartedly approves such decision. However, there are some critics on the February 2017 draft Convention. A future convention is expected to bring about some substantial improvements in the recognition and enforcement of judgments, and not simply repeat or codify the status quo. Regretfully, after review of the proposed draft Convention, it is difficult to clearly assess what progress the future convention would make in promoting the circulation of judgments between Europe and U.S. Many provisions of the Draft plainly correspond to current rules or practice on both sides of the Atlantic. Several provisions fall short of what is already possible today under national law. Balancing the pros and cons, it would also seem that, contrary to the very “pro-European” 1999 Draft, the new text is more favorable to the US than to the European Union. With respect to a few problematic areas, the Draft seems to bring only limited improvement. All these points are disappointing from a European perspective. Thus, a slightly imbalanced convention is perhaps – after the 2001 failure – the price to pay in order to convince the US to first sign a judgment convention and then ratify it, so as for the Draft to be effective.