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Part IV Selected Issues for Further Study, E Comparing Arbitration and Court Selection, 1 The Hague Choice of Court Convention

From: Arbitration of International Business Disputes: Studies in Law and Practice (2nd Edition)

William W. Park

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: null; date: 19 January 2021

(p. 735) The Hague Choice of Court Convention*

As the first edition this book went to press, breaking news indicated that the enforceability gap between court selection and arbitration might soon be narrowed. During the summer of 2005, at the Peace Palace in The Hague, the Conference on Private International Law agreed on the text of a treaty establishing rules for recognition of court selection agreements.1

During the intervening years the Convention has gained some favor, although not yet enough to take effect. As of early 2012, only Mexico had, by accession, indicated its agreement to be legally bound by its terms. Although the United States and the European Union have signed the treaty, providing preliminary endorsement, neither has proceeded to ratification. The European Union may decide to ratify the Convention only after completion of revisions of the Brussels Regulation, an EU judgments and jurisdiction instrument. The United States has no projected ratification date, due in part to a lack of consensus about the form of implementing legislation, which for some observers may implicate questions about the role of state law. According to Article 31 of the Convention, entry into force requires at least two instruments of ratification, acceptance, approval or accession.

The Convention, which serves as a litigation analogue to the New York Convention for arbitral awards, strives to offer portability of judgments equivalent to that now available for arbitral awards, and thus harmonize the legal regimes for the resolution of international business disputes. It provides that a choice-of-court clause will be deemed exclusive and recognized as such. Courts other than the chosen forum must decline jurisdiction. Enforcement is to be granted to judgments of the chosen court, with suitable exceptions for consumer and employment contracts, as well as special matters such as wills and personal injury claims. The absence of any treaty network, as indicated in the chapters in this section, has long been one of the drawbacks to court selection as compared to arbitration. Until now, no worldwide treaty does for judicial jurisdiction what the 1958 New York Arbitration Convention does (p. 736) for agreements to arbitrate.2 The geographical reach of regional arrangements (such as the European Union’s Brussels Regulation3) is considerably more limited than the scope of the New York Convention, which now boasts 136 members.

Footnotes:

Adapted from “The Hague Choice of Court Convention” in Arbitration of International Business Disputes (1st edn, 2006).

1  Hague Convention on Choice of Court Agreements, 20th Diplomatic Session, adopted 30 June 2005. See Ronald Brand, The New Hague Convention on Choice of Court Agreements, ASIL Insights, American Society of International Law (Washington, 26 July 2005).

2  See earlier discussion of the New York Arbitration Agreement in Part II, Section D, Chapter 4.

3  In early 2001, the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (signed in 1968) became the Brussels “Regulation” on Jurisdiction and Judgments. See Council Regulation 44/2001/EC, 22 December 2000, published in [2001] O.J. L012 (16 January 2001), entered into force 1 March 2001. This Regulation is sometimes called “Brussels I” to distinguish it from other jurisdiction and judgment instruments such as “Brussels II”, which addresses divorce and family matters. See Hans van Houtte, The Law of International Trade § 10.02 (2002).