Submission to Department of Justice on 2016 Preliminary Draft Convention on the Recognition and Enforcement of Foreign Judgments

28 November 2016
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1.     The Consumer Council appreciates the opportunity to comment on the Consultation Paper on the 2016 Preliminary Draft Convention on the Recognition and Enforcement of Foreign Judgments (“Consultation Paper”), issued by the International Law Division of the Department of Justice in October 2016.

2.     We set out below our views on those major issues raised in the Consultation Paper that have direct implications to the interests of consumers. 

Comments on the Consultation Paper

Paragraph 11(d)

3.     The Council in principle supports the application of the draft Convention to anti-trust or competition matters given that anti-competition acts of a corporation including those detrimental to consumer interests may be cross-border in nature.  We wish the application could help enhance consumer protection in global terms.

Paragraph 12(g)

4.     Article 5(2) of the draft Convention defines “consumer” as “a natural person acting primarily for personal, family or household purposes”. The said Article applies when a judgment is sought to be recognized or enforced against a consumer in matters relating to a consumer contract and provides exception to such defendant consumer by restricting the application of certain bases for recognition and enforcement of judgment stated in Article 5(1).  The Council considers the exception appropriate in view of the unequal bargaining power of consumers and traders.

5.  However, regarding the meaning of “consumer contract”, the Council considers that it may be desirable to clarify in the draft Convention whether it covers consumer-to-consumer transactions given the rapid growth of sharing economy across the globe.

Paragraph 16

6.     Article 13 of the draft Convention prohibits the requested court from imposing the security requirement solely on the grounds that the party applying for enforcement of judgment is a foreign national or is not domiciled or resident in the requested state. To some extent, this could alleviate the burden for a Hong Kong consumer plaintiff who seeks to enforce a Hong Kong court judgment in a foreign country. On this basis, the Council considers that Article 13 could enhance the access to justice by consumers.