The Hague Choice of Court Convention (2005) - A Critical Assessment

• Author: Paulo Borba Casella
• Position: Full professor for public international law & head of the international and comparative law department of the University of São Paulo
• Pages: 81-98

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La Convention de La Haye de 2005 sur l’élection de for qui devrait fonctionner comme un outil particulièrement efficace pour s’assurer que le choix d’un for fait par les parties soit accepté par les états.

Catherine KESSEDJIAN, Le droit entre concurrence et coopération (in Vers des nou-veaux équilibres entre ordres juridiques : mélanges en l’honneur de Hélène GAUDE-MET-TALLON, Paris: Dalloz, 2008, pp. 119-132)

Tort is one of the most fascinating areas of private international law. It brings into focus the very basis of private international law including the reasons for displacing the law of the forum and the method of selecting the governing law. Not surprisingly this area of the law is the subject of many theories and approaches.

Michael C. PRYLES, Tort and related obligations in private international law (RCADI, 1991, t. 227, pp. 9-206, cap. i, ‘introduction’, pp. 21-31, cit. p. 21)

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Conceptual approach

The effort aiming codification of international law has brought relevant results, along the last five decades. The successful results do not need to be stressed. Others felt short of equivalent achievements. These might deserve a closer look, in order to assess the pros and contras of such attempts. Could possibly this turn to be the case of the Hague Choice of Court Convention (2005)² ? An analysis of its contents and scope may be a hint at the possible extent of acceptance this Convention might expect to find.

The extent in which we are inserted in a changing world does not need to be stressed. Stating that change is the only thing that does not change is not new at all – the Ecclesiastes already stated contempt about “nihil sub sole novum” and SIMA QIAN, the Chinese equivalent of what should be expected of a classical Historian do already evidence this at large.

Present times might only have made this perception more close to us. And these times make it all the more necessary to cope with³.

Among such changes can be mentioned the fact that after the considerable development of formerly called “alternative” dispute resolution, we now tend to be more focused on the “appropriate” dispute resolution mechanisms⁴. This is mentioned in order to stress the growing need and awareness of structuring rules on the settlement of disputes in a multicultural world, growingly multidimensional and complex, in order to address adequately the needs of operators as to the choices available for dispute settlement, both judicial and non-judicial, both national and foreign.

Jurisdiction is more and more perceived not as a matter of state prerogative, but as a means for the adequate exercise of a function and performance of a service to be rendered. But this may be like going too far, too soon.

In the case of the Hague Choice of Court Convention (2005), as stated in its Preamble, there is a desire “to promote international trade and investment through enhanced judicial cooperation”, thereby believing that “such co-operation can be enhanced by uniform rules on jurisdiction and on recognition and enforcement of foreign judgments in civil or commercial matters”, while also “believing that such enhanced co-Page 83operation requires in particular an international legal regime that provides certainty and ensures the effectiveness of exclusive choice of court agreements between parties to commercial transactions and that governs the recognition and enforcement of judgments resulting from proceedings based on such agreements”.

This could, obviously, also be viewed from a Brazilian point of view. Thereto, can be added some more general considerations. Before drawing the final remarks.

Contents and scope

In order to draw a general line about the contents and scope of the Hague Choice of Court Convention (2005) it can be stated that this Convention “shall apply in international cases to exclusive choice of court agreements concluded in civil or commercial matters”.⁵

The extension to which the Convention (2005) encompasses not only exclusive choice of court agreements : to which a natural person acting primarily for personal, family or household purposes (as a consumer) is a party; and relating to contracts of employment, including collective agreements.

From a substantive point of view, the Convention (2005) shall not apply to matters, such as:

1. the status and legal capacity of natural persons;

2. maintenance obligations;

3. other family law matters, including matrimonial property regimes and other rights or obligations arising out of marriage or similar relationships;

4. wills and succession;

5. insolvency, composition and analogous matters;

6. the carriage of passengers and goods;

7. marine pollution, limitation of liability for maritime claims, general average, and emergency towage and salvage;

8. anti-trust (competition) matters;

9. liability for nuclear damage;

10. claims for personal injury brought by or on behalf of natural persons;

11. tort or delict claims for damage to tangible property that do not arise from a contractual relationship;

12. rights in rem in immovable property, and tenancies of immovable property;

13. the validity, nullity, or dissolution of legal persons, and the validity of decisions of their organs;

14. the validity of intellectual property rights other than copyright and related rights;

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15. infringement of intellectual property rights other than copyright and related rights, except where infringement proceedings are brought for breach of a contract between the parties relating to such rights, or could have been brought for breach of that contract;

16. the validity of entries in public registers.

    Notwithstanding the exclusions stated in article 2 paragraph 2, proceedings are not excluded from the scope of the Convention (2005) where “a matter excluded under that paragraph arises merely as a preliminary question and not as an object of the proceedings”, and is in intended, “in particular, the mere fact that a matter excluded under paragraph 2 arises by way of defence does not exclude proceedings from the Convention, if that matter is not an object of the proceedings”. It is mandatory to assess how a ‘preliminary question’ should be dealt with, at least for the purposes of the Convention (2005), as stated in its article 10.⁶

    The Convention (2005) shall not apply to arbitration and related proceedings. This seems quite obvious as “arbitration and related proceedings” are related by specific conventions. It would make no sense for the Hague Choice of Court Convention (2005) to resume these matters, already adequately regulated through other international instruments, such as the New York Convention on the recognition and enforcement of foreign arbitral awards (1958). on the other hand, proceedings are not excluded from the scope of the Convention (2005) by the mere fact that a State, including a government, a governmental agency or any person acting for a State, is a party thereto. At the same time, and also obviously enough, nothing in the Convention (2005) shall affect privileges and immunities of States or of international organisations, in respect of themselves and of their property.

    The Convention (2005) had to state clearly its scope, and this is made in Article 3, containg the definition of Exclusive choice of court agreements. The wording is quite direct, as for the purposes of this Convention : an “exclusive choice of court agreement means an agreement concluded by two or more parties (that meets the requirements of paragraph c) and designates, for the purpose of deciding disputes which have arisen or may arise in connection with a particular legal relationship, the courts of one Contracting State or one or more specific courts of one Contracting State to the exclusion of the jurisdiction of any other courts”;

    “a choice of court agreement which designates the courts of one Contracting State or one or more specific courts of one Contracting State shall be deemed to be exclusive unless the parties have expressly provided otherwise”;

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    It is also stated that an exclusive choice of court agreement must be concluded or documented in writing, or by any other means of communication which renders information accessible so as to be usable for subsequent reference.

    The exclusive choice of court agreement can be subject to severability. This is specifically dealt with by the Convention (2005)⁷.

    In case where such “forms part of a contract shall be treated as an agreement independent of the other terms of the contract”. Thereby the validity of the exclusive choice of court agreement cannot be contested solely on the ground that the contract is not valid.

    Equivalent reasoning is usually followed concerning the severability of arbitration clauses. The severability can be adopted for the same equivalent and understandable reasons.

    The Convention (2005) apparently caring not to take anything for granted, in Article 4, lists many other definitions, such as “judgment”, whereby is meant any decision on the merits given by a court, whatever it may be called, including a decree or order, and a determination of costs or expenses by the court (including an officer of the court), provided that the determination relates to a decision on the merits which may be recognised or enforced under the Convention (2005). It is quite clearly stated – and could not be otherwise – that “an interim measure of protection is not a judgment”. And equivalent measures could not possibly be otherwise understood.⁸

    For the purposes of the Convention (2005), an entity or person other than a natural person shall be considered to be resident in the State : where it has its statutory seat; under whose law it was incorporated or formed; where it has its central administration; or where it has its principal place of business.⁹

    Another relevant matter dealt...