There is some uncertainty as to how the Hague Convention will work with other international instruments, in particular the recast of the Brussels Regulation (“Regulation”). This EU regulation aimed to strengthen party autonomy by ensuring that “jurisdiction agreements cannot be circumvented by parties bringing an action before other courts in breach of those agreements”[22], i.e. that proceedings are first initiated in jurisdictions other than those chosen by the parties. Since the Hague Convention contains a `right of way provision`, in cases concerning only parties established in the EU and/or parties residing in States other than the Hague Convention, the provisions of the Regulation should prevail where a contract provides for the exclusive jurisdiction of a Union court. However, in other cross-border cases brought before the courts of the Contracting State, the Hague Convention may prevail. The consequences of these provisions of the Convention are very important. They have the effect of conferring on the national legal order allegedly chosen in an agreement conferring jurisdiction the exclusive power to decide on the existence and validity of that convention, without the possibility of reviewing it in the context of the recognition procedure. This is in stark contrast to the New York Convention, which gives recognition tribunals the power under article V(1)(a) to refuse recognition on the basis of the absence of a valid arbitration agreement, regardless of an arbitral tribunal`s decision that such an agreement existed, and notwithstanding a court`s decision to set aside the same. Given the central importance of consent and party autonomy for both arbitration agreements and jurisdiction agreements, the removal of the protection of Article V, paragraph 1(a), by the Convention is very problematic: it entails the very real risk that the parties will be forced to bring legal proceedings and be bound by court judgments whose authority they have never agreed. The Convention achieves its objective of strengthening the choice of jurisdiction by imposing three things on signatory States:[17] (1) A Contracting State may declare that its courts will recognize and enforce the decisions of the courts of other Contracting States designated in an agreement conferring jurisdiction concluded by two or more parties that satisfies the requirements of Article 3. Disputes arising or likely to arise in the context of a special legal relationship, one or more courts of one or more Contracting States (agreement conferring non-exclusive jurisdiction). 2. Where recognition or enforcement of a judgment given in a Contracting State which has made such a declaration is sought in another Contracting State which has made such a declaration, the judgment shall be recognized and enforced in accordance with this Convention if: – international commercial arbitration has long been designated as indispensable to world capital flows; it allows the parties to the transaction to access a jointly chosen forum when disputes arise between them and leads to an enforceable award at the end of the arbitration.
However, recent developments may begin to change the monopoly of arbitration institutions on the settlement of international disputes. Two decades of research, elaboration and negotiations conducted under the auspices of the Hague Conference on Private International Law led to the creation of the Hague Convention on Jurisdiction Conventions (the “Hague Convention” or “Convention”) in June 2005. Two years later, Mexico was the only country to ratify, but after a decade of languishing as an ineffective agreement, the Latvian Presidency of the European Union (“EU”) deposited an instrument of ratification on behalf of 28 EU Member States. [1] Following these accessions, the Convention entered into force on 1 October 2015. The United States and Singapore have also signed the convention, but neither of them has yet ratified it. The purpose of the Hague Convention is quite simple. If the parties have agreed to settle their commercial disputes before a particular national court, the Convention provides that this Agreement shall be enforced in each signatory State[2], the other signatory States shall refrain from asserting their jurisdiction in the matter[3], and a subsequent judgment of the chosen court shall be recognised in the other signatory States. [4] The long-term objective is to establish an international judicial system similar to that established for arbitration agreements by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”).
This would be an important first step towards equating judgments in global enforcement with arbitral awards. These are the three pillars of the Hague Convention and they should work together. For example, if two parties confer exclusive jurisdiction on the Spanish courts in their contract, but one party nevertheless initiates proceedings in Mexico, the Mexican court is obliged to stay or dismiss those proceedings in accordance with its obligations under the Convention. Similarly, once the Spanish court has rendered its decision, the Mexican courts will be obliged to apply it. As stated in the European Commission`s explanatory memorandum of 30 January 2014, the Hague Convention aims to “provide greater legal certainty and predictability to parties involved in business-to-business agreements and international disputes by creating an optional global dispute resolution mechanism that is an alternative to existing arbitration”. [12] Like the arbitration system established by the New York Convention, the Hague Convention is limited only to civil and commercial matters (i.e., it excludes disputes relating to consumer and employment contracts, most family law cases, insolvency issues, personal injury to individuals and certain insurance contracts). [13] Here too, the Hague Convention, based on the New York Convention, applies only if the Contracting Parties have definitively chosen a place of jurisdiction for the settlement of their disputes. [14] Non-exclusive jurisdiction agreements do not fall within its scope. The New York Convention also requires that the choice of venue (court or arbitration) be made in writing,[15] while the Hague Convention requires that it be made in writing or by any other means that is easy to use during enforcement proceedings.
[16] Mr. Born`s contribution is one of the poorest I have ever seen from an international lawyer. He writes that the Hague Convention “aims to implement the legal regime of the New York Convention” (Part I). This is, of course, false. The authors of the convention simply drew inspiration from the New York Convention and wanted to find a regime in conformity with the law that would also be effective with regard to jurisdiction agreements. The convention is said to “ignore the realities of endemic coercion” (I). Equally false: there are many guarantees in Article 9 and in particular the protection of the public police. (I) It is quite wrong to claim that the New York Convention prevents anything resembling corruption in arbitration (II).
And even if that were the case, there is no reason not to seek the enforcement of foreign judgments based on jurisdiction agreements considered valid in a Member State of the Hague Conference. It is precisely the choice of court that allows the parties to avoid jurisdictions where corruption can occur. In many respects, the enforcement of arbitral awards under the New York Convention faces the same difficulties that Mr. Born tends to ignore. It is said that “the Convention would replace existing private international rules”: it is equally wrong that the Convention does not favour exclusively applicable regulations. The validity of an agreement conferring jurisdiction may be examined in the state of enforcement, as may the validity of an arbitration agreement under the New York Convention […].
