JURISDICTION UNDER THE HAGUE CONVENTION ON CHOICE OF COURT AGREEMENTS
Introduction
The 2005 Hague Convention on Choice of Court Agreements is an international Convention which makes provision for (i) the exercise of jurisdiction by a court which has been chosen in accordance with the requirements of the Convention, (ii) the nonexercise of jurisdiction by a court when another court has been chosen in accordance with the Convention, and (iii) the recognition and enforcement of judgments given by a court which had been chosen in accordance with the requirements of the Convention. It does not provide for (iv) for the non-recognition of foreign judgments which have been obtained by a party in breach of the provisions of the Convention, or (v) the restraining of a person who is bringing proceedings in a foreign court in breach of the provisions of the Convention. This Chapter concerns itself with items (i) and (ii). Item (iii) is examined in Chapter 36; item (iv) in Chapters 34 and 36, and item (v) in Chapter 28.
With effect from Completion Day, the 2005 Hague Convention takes effect in English law as Section 3D( 1) of the Civil Jurisdiction and Judgments Act 1982; the text of the Convention is set out in the Act as Schedule 3F. The text of the Convention is printed in Appendix 2 to this book, but for convenience of reference a number of its provisions are reproduced in this Chapter.
Prior to Completion Day, the Convention had taken effect in the United Kingdom as a Member State of the European Union, upon and by reason of its adoption by the European Union, with effect from 1 October 2015. After Completion Day it will take effect because of its adoption by the United Kingdom as an independent state. The relationship between these two events of taking effect is dealt with in Paragraph 25.11.
It is reasonable to expect that, as it appears to operate in the States to which it applies without obvious difficulty, the Convention will attract an increasing number of States. One particular reason to think that this may happen is that the 1958 New York Convention on Arbitration, with which this Convention has some similarity, came to be adopted by 170 or so States. As arbitration rests on the consent of the parties who made the agreement, and the Hague Convention does likewise, it is reasonable to expect that it will appeal, and be taken up, in a similar way.
The basic scheme of the 2005 Hague Convention is that when there is a relevant choice of court agreement for the courts of a Hague State which falls within its scope, three broad things happen. First, the court of the Hague State chosen will have jurisdiction and may be required to exercise it by a party to the agreement, come what may. Second, the courts of every other Hague State will have no jurisdiction unless one
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The insertions into the 1982 Act are made by the Private International Law (Implementation of Agreements) Act 2020
of a small number of narrow conditions is met, in which case it is not prevented from exercising jurisdiction even though there appears to be an agreement for the exclusive jurisdiction of another Hague State. Third, the courts of the Hague States will, subject only to limited exceptions, recognise and enforce the judgment if they are satisfied that the original court did have jurisdiction on the basis of the Convention. There is a certain amount of detail to be examined, but the broad outlines are clear.
The list of Hague States, as of 1 September 2020, is as follows: the Member States of the European Union; the United Kingdom (as Member State, but from 1 January 2021 as independent State); Singapore; Mexico; and Montenegro. The list does not include Iceland, Norway or Switzerland, which are States Party to the Lugano Convention but not to the Hague Convention.
Apart from its transitional provisions, which make perfect sense except in relation to the United Kingdom which managed to make trouble which no one had foreseen, and the provisions which define its relationship with other conventions, where complication is inevitable, the Hague Convention is straightforward. One of its real strengths is that pretty much anyone reading it will be able to grasp what it means. That is not to say that an English lawyer will agree with or applaud the choices it makes or be happy about the issues it fails to address, but one cannot have everything. Perhaps one of the biggest questions, not directly answered by the Convention itself, is the extent to which is makes a fresh start or instead says what it says but borrows existing law on choice of court agreements to fill in the gaps. It is not clear what the answer is supposed to be.
The 2005 Hague Convention is surprisingly restrictive, which really means narrow, in defining the conditions which govern its application: put simply, it applies to a much smaller set of choice of court agreements than does the Lugano Convention, or the rules of the common law. One is left to reflect that this was presumably required to obtain consent sufficient for its text to be agreed to. By contrast with the corresponding provisions of the Lugano Convention (and, indeed, the Brussels Convention and Regulation) it is a more limited and less ambitious instrument. By contrast with the corresponding rules of the English common law it is, frankly, rather unsophisticated. It will, however, do some good, particularly if the United Kingdom fails to make a case for its participation in the Lugano Convention as an independent state; but the provision it makes is little consolation for the loss caused by wantonly casting away a far superior scheme.
It is convenient to examine the structure and operation of the Hague Convention as it applies to cases which fall unambiguously within its temporal scope; and to postpone to the end of the chapter actual consideration of the temporal scope of the Convention, together with the complications arising from the United Kingdom’s clumsy departure from the European Union and the legal relations which depended on membership of that Union.
