Choice Of Court Agreements Research Articles

The ‘Manifest Injustice’ Clause in Article 4 of the Hague Convention on Private International Law: Applicability in International Commercial Contract Disputes

This paper critically examines the ‘manifest injustice’ clause in Article 4 of the Hague Convention on Choice of Court Agreements, focusing on its applicability in international commercial contract disputes. The clause serves as a safeguard to ensure fairness in choice of court agreements by allowing courts to set aside agreements that result in unjust outcomes for one of the parties. The paper explores various contexts in which this clause applies, such as situations involving unequal bargaining power, fraud, duress, coercion, procedural injustice, and unconscionable terms. It also discusses the significant legal challenges associated with its application, including the lack of a clear definition, variability in judicial interpretation, conflicts with the principle of party autonomy, and evidentiary burdens. The paper concludes that while the ‘manifest injustice’ clause is a critical tool for promoting fairness in international commerce, its effectiveness depends on the development of clearer guidelines and more consistent jurisprudence to harmonize its interpretation across jurisdictions, thereby enhancing its role in ensuring justice and equity in cross-border contractual relationships.

„Brexito“ įtaka tarptautiniam bylinėjimuisi

By concentrating on the few recognised instruments of private international law, the article analyses problems in international commercial dispute resolution arising from Brexit. In particular, the paper deals with the relevance of, firstly, the 2007 Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; secondly, the 2005 Hague Convention on Choice of Court Agreements; and, thirdly, the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, all in the context of Brexit. Contextual analysis of each of the said instruments pays particular attention to the challenges specific to each of them. Therefore, for example, the article discusses the EU’s arguments in relation to its refusal to allow the United Kingdom to join the aforementioned 2007 Lugano Convention as well as varying perspectives on the moment when the 2005 Hague Convention begins to apply to the United Kingdom. Finally, the paper discusses the relevance of the recent 2019 Hague Convention in the context of Brexit.

Consumer Jurisdiction and Choice of Law Rules in European and Chinese Private International Law

This article compares consumer jurisdiction and choice of law issues in China and the EU. It aims to answer the following questions. What is the notion of consumer? Are farmers, package travel tourists and timeshare tourists consumers? Are dual-purpose contracts consumer contracts? Is a consumer jurisdiction rule needed in China and if yes, under what ground and with what conditions? Is choice of court agreement in consumer contracts valid? How to limit the exercise of party autonomy and what role mandatory provisions may play? Shall consumer contract and tort claims be subject to the same applicable law? Based on a comparative analysis with European law, this article concludes that to improve cross-border consumer protection, China should reform its law to include package travel contracts and timeshare contracts into consumer contracts and determine the nature of dual-purpose contracts pursuant to their primary purpose. Moreover, the current limitation on party autonomy should be lifted by providing freedom to both parties and relying on mandatory provisions as a safety valve. The consumer choice of law rule and its interaction with the general contract choice of law and tort choice of law rule needs to be reexamined.

Assessment of the Success of the Convention on Choice of Court Agreement in Transnational Commercial Dispute Resolution

Assessment of the Success of the Convention on Choice of Court Agreement in Transnational Commercial Dispute Resolution

The Hague Convention on Choice of Court Agreements: Return of the Litigators?

The Hague Convention on Choice of Court Agreements: Return of the Litigators?

Dopuszczalność pozwania pracownika z państwa trzeciego przed sądem polskim na podstawie przepisów rozporządzenia nr 1215/2012 oraz kodeksu postępowania cywilnego

The EU Regulation 1215/2012, as well as the Polish civil procedural law regarding individual employment relationships are employee-interest oriented. The employee’s domicile is a specific form of privilege on the level of the national jurisdiction regulations establishing international competence of national courts. The domicile provides effective protection for the employee in case of a potential dispute with an employer,who initiates the proceedings. Unfortunately, neither the Regulation 1215/2012 nor the Polish civil procedural law provides for equivalent protection for a third state employee (an employee from outside the EU) compared to an employee domiciled in Poland. The paper argues that despite a one-sided regulation, suing a third state employee before a Polish court is in principle impermissible. When applying the objective criterion to determine whether there is a national jurisdiction to hear the case, the court should consider the need to protect the employee and his or her legitimate interests. The author posits that the employee’s interest constitutes a legal basis for assessing whether in the proceedings before a Polish court — as forum conveniens — it is possible to safeguard the rights of a weaker party of a particular legal relationship. If a choice of court agreement was concluded, suing a third state employee before a Polish court will not be possible. This is because the prorogation agreement is subject to Article 23 of the Regulation 1215/2012. This provision requires that for the prorogation of jurisdiction to be effective, the employee, as party to an agreement, must be domiciled in one of the Member States.

The court’s discretionary power to enforce valid jurisdiction clauses: time for a change?

The paper challenges the well-rooted principle in the Anglo-American legal tradition that courts have discretion whether they should enforce a valid jurisdiction clause. The paper highlights the ambiguity and uncertainty that accompany this discretionary power, which raises a serious analytical problem. The paper then analyses two factors that shaped this discretionary power – jurisdictional theories and the general principle of party autonomy in contracts. Based on the analysis, the paper argues that the time has come to end the courts’ discretionary power with respect to the limited context of the enforcement of valid jurisdiction clauses. The proposal relies on a number of foundations: contractual considerations that relate to autonomy and efficiency; jurisdictional and procedural considerations, including the consent of a party to the jurisdiction of the court by general appearance; the increasing power of parties to re-order procedure; the more appropriate expression of the forum’s public interests and institutional considerations through overriding mandatory provisions; and finally the legal position regarding arbitration agreements and the willingness of a common law legal system such as the United Kingdom to accede to the Hague Convention on Choice of Court Agreements.

Resolving conflicts: establishing forum non conveniens in a new Hague jurisdiction convention

In 1992, the Hague Conference on Private International Law (HCCH) commenced the Judgments Project with the aim of delivering a convention harmonising rules of jurisdiction and recognition and enforcement of judgments. Despite the ambition and promise the project held, the first major attempt at delivering a convention, the 2001 Interim Text, was unsuccessful after it failed to gain consensus among the Conference’s Member States. The HCCH scaled back the Judgments Project to focus work on the 2005 Convention on Choice of Court Agreements and the 2019 Convention on the Recognition and Enforcement of Foreign Judgments. However, the issue of jurisdiction has not been forgotten, with the Hague having recently established a Working Group to begin drafting provisions for a fresh attempt at the subject which hopefully will succeed where the Interim Text did not. The aim of this article is to explore the issue of how the proposed convention shall address conflicts of jurisdiction in international litigation. A conflict of jurisdiction will typically arise where the same proceedings, or related ones, come before the courts of several fora, or in one forum which considers another forum to be better placed to adjudicate the dispute. One solution to such conflicts is the, originally Scottish, doctrine of forum non conveniens, which allows a court discretion to decline to exercise jurisdiction on the basis that the appropriate forum for the trial is abroad or the local forum is inappropriate. This article argues for the inclusion of a version of forum non conveniens in the proposed jurisdiction convention to settle these conflicts when they arise. However, as there are many interpretations of what makes one forum more or less appropriate to hear a case than another, this article tackles the issue of how such a principle could be drafted to achieve consensus at the Hague Conference. Much of this analysis is based on the original 2001 Interim Text, and upon more modern cross-border agreements which utilise forum non conveniens.

On the Declaration of Matters Which Have “Strong Interests” under Article 21 of the Convention on Choice of Court Agreements

The Convention on the Choice of Court Agreements provides for a declaration of a specific matter under Article 21 of the general provisions of chapter IV, that is, when a State has a strong interest in not applying the Convention to a particular matter, it may declare that the Convention is not applicable in this matter. However, for what is a “strong interest”, what matters can constitute a “strong interest”, the Convention does not make a statement. As a Contracting Party, EU declares that it will not apply the Convention to certain types of insurance contracts that EU has strong interests in when acceding to the Convention. Therefore, in-depth analysis of the connotation of the “strong interests”, while clearly distinguishing it from public order, and learning from the European experience, will help China make a clear statement on matters related to the “strong interest” in the ratification of the Convention.

Chronology of Practice: Chinese Practice in Private International Law in 2020

Abstract This survey contains materials reflecting the practice of Chinese private international law in 2020. First, regarding changes in the statutory framework of private international law in China, three legislative acts, one administrative regulation on the Unreliable Entity List and ten judicial interpretations of the Supreme People’s Court were adopted or amended in 2020 on a wide range of matters, including conflict of laws, punitive damages, international civil procedure, etc. Second, 11 typical cases involving Chinse courts’ jurisdiction are selected to highlight the development in Chinese private international law, involving standard essential patents, abuse of market dominance, declaration of non-infringement of patent, asymmetric choice of court agreement and other matters. Third, nine cases on choice of law questions relating, in particular, to habitual residence, rights in rem, matrimonial property regimes and ascertainment of foreign law, are examined. Fourth, five cases involving anti-suit injunction or anti-enforcement injunction are reported and one introduced in detail. Fifth, the first occasion for on international judicial assistance of extracting DNA, as well as three representative cases on the recognition and enforcement of foreign judgments, are discussed. The Statistics of international judicial assistance cases in China is first released in this survey. Finally, this survey also covers five recent decisions illustrating Chinese courts’ pro-arbitration attitude towards the uncertainty brought about by contractual clauses referring to both litigation and arbitration.

A Hague Convention on Parallel Proceedings

The Hague Conference on Private International Law has engaged in a series of projects that, if successful, could provide the framework for critical aspects of trans-national litigation in the Twenty-first Century. Thus far, the work has resulted in the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. Work now has begun to examine the need, desirability and feasibility of additional instruments in the area, with discussions of an instrument that would either require or prohibit the exercise of jurisdiction by national courts, and of an instrument that would channel parallel proceedings to a “better’ forum. The authors of this brief article advance the view that a convention regulating jurisdiction is not a good approach, but that an instrument finding a “better” forum in parallel proceedings, constructed on an open-minded and non-dogmatic basis, is needed, desirable, and feasible.

Los acuerdos de elección de foro en los contratos internacionales de consumo Su eficacia en la Ley N° 19.496

This study is divided into two parts. The first part analyzes the rationale for choice of court agreements, the roles they play in international contracts, and the difficulties arising when recognizing them in agreements between parties with unequal bargaining power, specifically in international consumer contracts. The second part analyses the national rules of international jurisdiction applicable to these contracts. Bearing this in mind, first, the current state of the discussion about their validity in Chile is explained; then the effect in this discussion of applying the provisions of Law No. 19.496 - on consumer rights protection (LPDC by its Spanish acronym), is studied. The international interpretation of the rules of jurisdiction set forth by this law, and the control it provides over abusive terms in consumer contracts are studied as possible solutions to stablish the validity of these contracts. The foregoing, in order to seek a solution that harmonizes, both, the purposes of international consumer protection and to recognize the international nature of their consumer relationship, which allows to consider these contracts as valid if some specific requirements are met.

외국재판 승인 및 집행협약상 몇 가지 쟁점에 대한 소고

On July 2, 2019, the Hague Conference on Private International Law (HCCH) adopted a new multilateral Convention on the Recognition and Enforcement of foreign judgments in civil or commercial matters. When the Convention enters into force, the courts of the Contracting States shall be obliged to recognize and enforce civil and commercial judgments of other Contracting States. Traditionally, the recognition and enforcement of foreign judgments were entirely governed by the domestic laws and practices of each state. It is significant that after a long effort, the Convention on the recognition and enforcement of foreign judgments, which was internationally unified beyond the region, was launched. A substantial risk that a recognition and enforcement of a judgment of one country could be denied in another country has been largely eliminated In the future, the new Convention will complement the 2005 Hague Convention on Choice of Court Agreement and 1958 the New York Convention on the recognition and enforcement of foreign arbitral awards, and could contribute significantly to the stability, predictability of cross-border commercial transactions and thereby improve trade, investment and the global economy. The Convention is now waiting for each country's accession and ratification, and it is noteworthy how well each country will respond and achieve the same success as the New York Convention. In this paper, several issues are reviewed, particularly recognition and enforcement under national law, the method of acceptance by domestic law, fraud as a reason for refusal of recognition and enforcement of judgments, a substantive or procedural violation of public policy, reciprocity, the possibility of setting a uniform standard of habitual residence, the mechanism for declaring of refusal are reviewed. It is necessary to quickly become acquainted with the judgment Convention, in practice and academic circles, including courts dealing with recognition and enforcement of foreign judgments by preparation and distribution of commentary on the Convention. Watching the trend of many countries joining the Convention, we need to review proactively the timing of Korea's accession to the Convention.

Legal considerations and challenges involved in bringing the 2005 Hague Convention on Choice of Court Agreements into force within an internal legal system: A case study of Thailand

Thailand must consider two vital elements, namely its internal legal system and environment before signing the Hague Convention on Choice of Court Agreements 2005 (Hague Convention). This paper investigates whether the law of Thailand in its current form is inconsistent with the Hague Convention. Articles 1–15 are examined to identify areas of inconsistency and to suggest appropriate solutions. This study finds that the internal legal system of Thailand is not quite in line with the Hague Convention. This conclusion leads to analytical recommendations to suit the needs of the current Thai legal system. Implementing these recommendations is necessary for Thailand if it intends to become a Party to the Hague Convention. Thailand must not only have a specific implementation act but must also review and revise the relevant laws appropriately.

Odnos litispendencije i isključive ugovorene međunarodne nadležnosti u pravu Haške konferencije i Bosne i Hercegovine

The subject of the paper refers to the analysis of the exercise of the will of the contracting parties regarding the jurisdiction of the court in the law of the Hague Conference and Bosnia and Herzegovina. The exercise of the will of the contracting parties may be limited by the institute of lis pendens, which makes it impossible to conduct two proceedings between the same parties simultaneously for the same claim based on the same facts, giving priority to the first one, regardless of agreed-upon international jurisdiction. By agreeing on the jurisdiction, the contracting parties decide which court will resolve their dispute, which is extremely important for them. Based on the analysis of the Hague Convention on Choice of Court Agreements, it is concluded that preference is given to proceedings before the chosen court, with certain exceptions when the agreement of the parties will not apply. The law of Bosnia and Herzegovina applies the rules of lis pendens which may prevent the application of the agreement of the parties.

BREXIT AND PRIVATE INTERNATIONAL LAW: LOOKING FORWARD FROM THE UK BUT ACTUALLY GOING BACKWARD

International judicial cooperation for civil matters between Member States of the EU and the United Kingdom can be severely curtailed as a consequence of Brexit if upon the end of the transitory period, 31 December 2020, no new partnership between the UK and the UE has been approved including agreements on civil judicial cooperation. Other multilateral solutions are possible within the framework of The Hague Conference on Private International Law, such as the accession by the UK in its own right to The Hague Convention 2005 on choice of court agreements or the ratification of The Hague Convention 2007 on child support, or via the UK’s accession to the Lugano II Convention 2007. A unilateral approach (modified unilateral transposition) is also possible with regard to EU legislation retained by the European Union (Withdrawal) Act 2018 determining in each case what piece of the EU legislation is effectively retained, modified or dismissed (pick and choose). In any case, the future outlook of civil judicial cooperation with the UK seems more like a leap back into the past than a step forward into the future. The situation for Gibraltar could be different if a new partnership agreement between the EU and UK includes a separate agreement in relation to Gibraltar where a sufficient repertory of EU cooperation instruments is bilaterally kept in force in order to safeguard the application of EU Private International Law applicable in Gibraltar to date.

THE CISG: APPLICABLE LAW AND APPLICABLE FORUMS

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Worldwide Freezing Order의 국제적 동향 -영국에서의 논의를 중심으로

소송상대방의 재산 내지 다툼의 대상이 되는 현상을 동결하거나 임시로 잠정적인 법률관계를 형성시켜 두는 조치는 판결의 집행을 담보하기 위한 제도로서 여러 국가에서 널리 사용되어 왔으나, 영국은 한 걸음 더 나아가 피신청인의 역내/역외자산을 일괄하여 동결하는 처분, 즉, 역외적(域外的) 효력을 가지는 자산동결처분(Worldwide Freezing Order, 이하 ‘WFO’)을 확립하여 많은 주목을 받고 있다.<BR> 이른바 “Mareva Injunction”이라고도 알려진 WFO는 1975년 처음 그 모습을 드러낸 이후 수많은 판례를 통해 발전하여 오다가 현재 영국의 1998년 민사소송규칙(Civil Procedure Rules 1998) 25.1(1)(f)에 근거를 두고 있는 안정적인 제도로 정착되었는데, 특히, 브뤼셀/루가노협약(Brussels/Lugano Convention)이나 헤이그 재판관할합의협약(Hague Convention on Choice of Court Agreements)의 체제하에 있는 국가에서 본안소송이 제기되거나 제기될 예정에 있는 때에도 WFO를 발령할 수 있는 관할권을 가지는 등 영국법원이 가지는 권한은 막강하다.<BR> 무엇보다도 WFO는 책임재산을 확보하는 과정에서 피신청인에게 그 보유자산에 관한 정보를 구체적으로 공개하도록 강제하고 있을 뿐만 아니라, 일정한 요건이 충족된 경우에는 WFO를 직접 발령받지 않은 제3자에 대해서까지 영향력을 미칠 수 있어서 그 파급력이 크다. 가령, 피신청인의 계좌를 관리하는 은행과 같은 금융기관은 그 명령에 명시된 구체적인 준수사항으로부터 많은 영향을 받게 되므로, 관련 내용을 정확히 숙지하여 업무를 처리해야만 하는 부담을 안게 된다. 나아가 최근에는 이와 같이 광범위한 효력을 가지는 WFO가 국제상사중재의 영역에까지 진출하여 그 활용도가 점점 높아지고 있다. 심지어 영국법원은 중재절차의 중재지(仲裁地, arbitral seat)가 영국이 아닌 경우에도 WFO의 발령을 허용하여 중재절차 상대방의 책임재산을 확보하는 수단으로 위 제도를 적극 활용하고 있다.<BR> 물론, WFO는 특정 자산에 대한 대물적(對物的, in rem) 처분이 아닌 대인적 처분(對人的, in personam)에 불과하여, 피신청인이 이를 위반하여 해당 재산을 처분하더라도 거래상대방과의 법률관계에는 아무런 영향이 없다. 즉, 피신청인은 단지 법정모독죄(contempt of court)를 저지른 것으로 취급되어 영국법원으로부터 제재를 받을 뿐인 것이다. 하지만, 이를 단지 하나의 외국법원이 발령한 형식상의 명령이라고 치부하고 사실상 무시하기에는 영국이나 영국법원이 가지는 국제적인 법률/비즈니스 중심지로서의 역할이 크기 때문에 향후 영국과 관련된 사업 등을 염두에 두고 있는 당사자의 입장에서는 WFO에서 명령하고 있는 사항을 과감하게 무시하기가 쉽지 않을 것이다. <BR> 따라서 우리나라의 개인/법인이나 금융기관들도 위와 같은 WFO의 효력에 그대로 노출될 수 있다는 점에서 이에 관심을 가질 필요가 있다. 피신청인으로서 WFO를 직접 위반하는 경우는 물론이고, 제3자의 지위에서 그 내용을 제대로 숙지하지 못하여 결과적으로 피신청인의 WFO 위반에 협조하게 된 경우에는, 영국법원으로부터 제재를 받아 국제적인 영업활동에 제한을 받을 수 있기 때문이다. 반면에, 이 제도를 잘 활용한다면 신청인으로서는 거래상대방의 자산 현황을 쉽게 파악할 수 있을 것이다.<BR> 미연방대법원(U.S Supreme Court)도 미국이 입법을 통하여 WFO와 같은 제도를 확립하는 것은 가능하다면서 그 도입가능성을 열어두었고, 실제로 호주, 홍콩, 싱가포르와 같은 많은 커먼로(Common Law) 국가에서는 저마다 WFO에 관한 독자적인 법리를 발전시켜 나가고 있는 점 등에 비추어 보면, 앞으로 WFO는 국제적인 비즈니스 무대에서 더 활발하고 빈번하게 활용될 것으로 보인다. 우리나라에서도 WFO에 관하여 더욱 많은 관심과 연구가 필요한 때이다.

Choice of court agreements and derogation from competition law

Japanese courts have held that a choice of court agreement should be respected even if it would lead to derogation from domestic competition law. The exception is where there would be such a discrepancy between the outcomes before the designated foreign court and the Japanese courts that it would be intolerable to enforce the agreement from the standpoint of maintaining the public policy objectives of Japanese competition law. However, this paper puts forward an alternative approach as the more appropriate course to take, submitting that choice of court agreements should generally be respected by courts in competition law claim situations, unless they are obviously unreasonable or contrary to public policy on their face. At the jurisdictional stage, a court should not treat an agreement as invalid merely because it could potentially lead to a derogation from domestic competition law, even where such law is regarded as a body of overriding mandatory rules.

Between National Interests and Global Business: China’s Possible Reservations to the Hague Convention on Choice of Court Agreements

Abstract In September 2017, China signed the Hague Convention on Choice of Court Agreements. There are no obstacles preventing China from ratifying the Convention. However, the possible reservations China may declare appear to be a key concern for the success of the Convention. This article identifies the key conflicts between the Convention and Chinese law and practice, and analyses the pros and cons of some possible reservations the Chinese authorities may consider when ratifying the Convention. China’s ratification of the Convention would have a positive impact on the global recognition and enforcement of foreign civil and commercial judgments. Although China may have some specific concerns (e.g. national security) in its recognition and enforcement of particular foreign judgments, it is desirable that China adopts a pragmatic approach and minimize the number and extent of its reservations to the Convention.