hong kong 9 september 2019 junhyok jang sungkyunkwan university n.
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Hong Kong, 9 September 2019 Junhyok Jang Sungkyunkwan University

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Hong Kong, 9 September 2019 Junhyok Jang Sungkyunkwan University

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  1. Inaugural Global Conference2019 HCCH Judgments Convention:Global Enforcement of Civil and Commercial JudgmentsThe Role of Public Policy in the 2019 Judgments Convention: Accommodating Divergence within the Bounds of Uniformity Hong Kong, 9 September 2019 Junhyok Jang Sungkyunkwan University

  2. Uniformity vs. diversity in interpreting the content of public policy • Public policy of the forum may intervene, within the limits allowed by the Convention. • Substantive public policy • Degree of uniformity in distinguishing compensatory and non-compensatory damages: • Any practical limits? • Public policy review of injunctions: • Stricter review of extra-territorial effect of injunction as opposed to intra-territorial effect? • Depending on the public policy of each requested State?

  3. Procedural public policy • Marginal possibility of reviewing indirect jurisdiction within the framework of public policy: Last resort for the defendants? • Later judgment of the requested State conflicting with an earlier foreign judgment, while the recognition procedure for the latter is sought: Inherent limit on the function of public policy? State A issues an earlier judgment -> State B, requiring a certain procedure for recognition, issues a conflicting judgment -> Public policy is invoked in State B • Later foreign judgment becomes quickly unappealable, while a conflicting foreign judgment, issued earlier, is yet to be recognized: A residual role for general public policy? State A issues an earlier judgment -> State B issues a judgment -> State B judgment becomes unappealable -> Public policy is invoked in State C for refusing to recognize State B judgment

  4. Distinction between the obligation of Contracting States and their courts • Art. 7: “Recognition or enforcement may be refused …” • Burden of invoking and proving the refusal grounds • Burden on the party resisting recognition or enforcement? • Ex officio review? • Meaning of the Art. 7 discretion • Is discretionary refusal mandatory? • Contracting State’s freedom to provide for mandatory refusal or bounded discretion • Art. 4(4): “… the court addressed may …” • Is each Contracting State free to provide for mandatory postponement or refusal?