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I. The 20th Session Of The Hague Conference: A New Choice Of Court Convention And The Issue Of Ec Memebership

Published online by Cambridge University Press:  17 January 2008

Thalia Kruger
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Extract

On 30 June 2005 a Convention to respect choice of court agreements was finally born. The Hague Convention on Choice of Court Agreements aspires to be parallel to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (‘New York Convention’). The exception is that if an equally broadly accepted convention exists with respect to choice of court agreements,1 business parties will have an alternative to choosing arbitration in their contracts. If they have the assurance that a judgement will be recognized and enforced in a large number of States, some might be more inclined to insert a choice of court clause instead of an arbitration clause. This assumption has been confirmed by ICC research.2

Type
Current Developments: Private International Law
Information
International & Comparative Law Quarterly , Volume 55 , Issue 2 , April 2006 , pp. 447 - 456
Copyright
Copyright © British Institute of International and Comparative Law 2006

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References

1 The New York Convention has 137 Contracting States.

2 See Preliminary Document No 22 of the judgments project. A Schulz ‘Report on the Work of the Informal Working Group on the Judgments Project, in particular on the Preliminary Text Achieved at its Third Meeting, 25–28 March 2003’ <http://www.hcch.net>; see also the results of the survey done by the ICC <http://www.iccwbo.org/law/jurisdiction/>

3 See von Mehren, AT ‘Recognition and Enforcement of foreign Judgments: a New Approach of the Hague Conference?’ (1994) Law and Contemporary Problems 271–87.CrossRefGoogle Scholar

4 See the ‘Summary of the Outcome of the Discussion in Commission II of the First Part of the Diplomatic Conference 6–20 June 2001’ and ‘Some reflections on the present state of negotiations on the judgments project in the context of the future work programme of the Conference’ (Preliminary Document No 16 of Feb 2002); both available at <http://www.hcch.net>.

5 Council Regulation (EC) No 44/2001 of 22 Dec 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; OJ L12 of 16 Dec 2001, 1–13.

6 See for example the Convention between Belgium and France on Jurisdiction and the Validity and Enforcement of Judgement Arbitration Awards and Authentic Instruments (Paris 1899) Article 4(1) and the Convention between Belgium and the Netherlands on Jurisdiction, Bankruptcy, and the Validity and Enforcement of Judgments, Arbitration Awards and Authentic Instruments (Brussels 1925) Article 6(1), even though these conventions left the initiative to the parties.

7 Council Regulation (EC) No 44/2001 of 22 Dec 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. OJ L12 of 16 Jan 2001, 1; see Art 27.

8 See the compromise solution that was reached in Art 21 of the draft Judgement Convention (‘Summary of the Outcome of the Discussion in Commission II of the First Part of the Diplomatic Conference 6–20 June 2001’ <http://www.hcch.net>) The starting point was that the court first seised would have jurisdiction, but there was an exception for negative declarations and an addition stating ‘This Article shall not apply if the court first seised, on application by a party, determines that the court second seised is clearly more appropriate to resolve the dispute…’. This point was also made by the expert from Switzerland at the Special Committee meeting 1–9 Dec 2003, see Minutes of the Meeting No 3, 5–6.

9 See Art 23(1) on the prorogation of jurisdiction: ‘Such jurisdiction shall be exclusive unless the parties have agreed otherwise.’

10 See the Draft report (n 7) 18.

11 See Case C-269/95 1997 Benincasa v Dentalkit srl ECR 1997, I-3767, especially Rec 24.

12 Among others China.

13 See the Draft Report (n 7) 22.

14 ibid 29.

15 It should be noted here that for the moment EU here encompasses all EU Member States except Denmark; see Protocol 5 to the EC Treaty on the position of Denmark. An Agreement has however been signed between the European Community and Denmark according to which the rules of the Brussels I Regulation will be extended to that State (OJ L 299 of 16 Nov 2005, 62). That Agreement now has to be ratified and will enter into force six months thereafter.

16 Provided that they are not domiciled in the same EU Member State and chose the courts of that Member State.

17 See Draft Report (n 7) 50–1.

18 Case C-116/02 Gasser GmbH v Misat Srl [2004] 1 Lloyd's Rep 222 <http://www.curia.eu.int>.

19 See the previous heading on the relationship between the Hague Convention and the Brussels I Regulation.

20 Case C-406/92 The owners of the cargo lately laden on board the ship ‘Tatry’ v the owners of the ship ‘Maciej Rataj’ [1994] ECR I-5439, especially Rec 27.

21 International Convention for the unification of certain rules relating to the arrest of sea-going ships (Brussels 1952).

22 The Casser judgement might prevail. It is also possible that the Brussels I Regulation might be modified on this point. A declaration with EC ratification of the Convention to explain the situation might be useful.

23 Opinion I/03. This opinion was asked of the European Court of Justice when a dispute arose between the Commission and the Member States of the European Union on whether the European Community's competence to conclude the updated version of the Lugano Convention was exclusive or shared with the Member States. In the judgement of 7 February 2006 the European Court of Justice ruled that the EC does indeed have exclusive external competence in this matter.

24 Convention on the Law Applicable to Certain Rights in respect of Securities held with an Intermediary <http://www.hcch.net>.

25 On this issue see also A Schulz's Report on the Meeting of the Drafting Committee of 18–20 April 2005 in preparation of the Twentieth Session of June 2005 (Preliminary Document No 28 <http://www.hcch.net>)21–2.

26 Although all EU Member States are Member States of the Hague Conference, a decision in principle on future Member Organizations had to be made.