Hague Choice of Court Agreements Convention 2005: Background, Negotiations, Analysis and Current Status

Abstract

The article outlines some of the negotiating history of the failed Hague Judgments Convention (1992-2001) and of the successful Hague Choice of Court Convention (2002-2005). The latter was chosen from amongst the small areas of consensus within the Judgments Convention negotiations. In doing so the article argues that the Permanent Bureau was right in 1992 to argue for a recognition and enforcement Convention that would outlaw exorbitant jurisdictions, what the author describes as a 'flexible mixed Convention', and that the time is ripe for the Hague Conference to begin work again on such a project. The article does not provide a systematic analysis of the provisions of the Hague Choice of Court Convention but instead reviews the Article by Article analysis made by Ron Brand and Paul Herrup, two of the US negotiators of the Convention, in their book on the Convention. In doing so the article highlights where there are differences of interpretation of the Convention by Brand and Herrup and by Trevor Hartley and Masato Dogauchi, the rapporteurs for the Convention who wrote the official explanatory report. From time to time the author sets out interpretations that differ from those given by both Brand and Herrup and the explanatory report, notably on whether the existence of a choice of court 'agreement' is a concept susceptible to analysis as a question of fact, or is a matter for the law of the forum, or can only be looked at under the rules in the Convention on formal validity and the choice of law rules on substantive validity and capacity. The author also tries to shed some more light on some of the provisions of the Convention to augment what Brand and Herrup and the explanatory report have done, eg on declarations and reservations and the relationship with Community Law. Finally the article sets out the prospects for the Convention being adopted in some key countries and notes that the signature of the US and the EC in early 2009 will hopefully stimulate many countries to take the steps to become bound by the Convention. It sends the right signal to commerce at this time of global recession if commercial parties are given the opportunity to reduce litigation costs by ensuring that disputes are resolved in the courts that they have chosen in their contracts.