Temporal scope of the Hague Convention
We return to the scope of the Hague Convention to deal with the two aspects of its temporal scope: the first, an orthodox one; the second one brought about by the omnishambles of Brexit. It is convenient to leave the second of these to a separate paragraph, for fear of cross-contamination.
The jurisdictional provisions of the 2005 Hague Convention depend on the date of conclusion of the agreement on jurisdiction, and on the date of the institution of proceedings. The rule is contained in Article 16, which provides as follows:
- (J) This Convention shall apply to exclusive choice of court agreements concluded after its entry into force for the State of the chosen court.
- (2) This Convention shall not apply to proceedings instituted before its entry into force for the State of the court seised.
The Hague Convention entered into force for the European Union on 1 October 2015 (though for Denmark, 1 September 2018); for Mexico on 1 October 2015; for Montenegro on 1 August 2018; and for Singapore 1 October 2016. At the date of writing, no other State had adopted, or was understood to be about to adopt, the Convention into its own law. No doubt other States will bring the Convention into force, but at the moment this is the list. Viewed from England, the Hague Convention is, in practice, relevant in relation to Singapore, choices of court for Mexico being rarer and for Montenegro rarest of all.[1] These, however, will be the dates used to answer the questions posed by Article 16: on the date on which the agreement was concluded the court chosen must have been in a Hague State. So far as the United Kingdom, and agreements for the exclusive jurisdiction of the courts of the United Kingdom, the effective date is, therefore, 1 October 2015. Whether or not it is agreed that the United Kingdom should rejoin the Lugano Convention as an independent state, the date of 1 October 2015 would apply, and continue to apply, to choice of court for Member States bound by the Hague Convention. For further discussion of the date applicable to the United Kingdom, and the complication of Brexit, see the following paragraph.
According to Article 16(2), the Hague Convention applies only to proceedings instituted after its entry into force for the Hague State whose courts are seised. That means that it will apply in proceedings before the English courts instituted on or after 1 October 2015. So for example, if proceedings were commenced in the English courts in 2018, and the defendant applied for a stay or dismissal on the ground that there was an exclusive choice of court agreement for the courts of Singapore, the Hague Convention would have required the English court to ascertain whether the agreement was concluded on or after 1 October 2016 and if so, whether the choice of court agreement conformed to the requirements of the Hague Convention. If the answers are affirmative, the English court will stay its proceedings; but if those conditions were not completely satisfied, the court would apply the ordinary principles of common law, which were set out in Chapter 23, to deal with the matter.
Withdrawal from the European Union
The Hague Convention entered into force for the United Kingdom when the European Union, as the relevant Contracting Party, brought it into effect, on 1 October 2015. That legal basis is dissolved on Completion Day. The consequential question is whether, if the United Kingdom becomes a Contracting State to the 2005 Hague Convention at the moment of withdrawal, the effective date for the United Kingdom is 1 January 2021, or remains as 1 October 2015.
It was always the intention of the United Kingdom that it would subscribe to the Hague Convention in its own right, and that there should be a seamless transition from one legal basis for its effect in the United Kingdom to another. To facilitate this, the United Kingdom notified its intention to adopt the Convention while the latter, wildly chaotic, stages of negotiating the separation were taking place. As the date on which the United Kingdom was planning to cease to be a Member State slipped and slipped again, it notified and re-notified the Depositary (which must have been as bewildered by the Tipp-ex and crossings-out as everyone else) of the amended date for this to take place. To the relief of all, no doubt, the United Kingdom then withdrew them all on 31 January 2020.
It did so on the basis that, although it would send in a clean copy of the instrument of ratification when the time was ripe (and which it actually did on 28 September 2020), the United Kingdom took the view that the United Kingdom has been a State to which the Convention applies since 1 October 2015, and that there is therefore no need for it to re-accede to the Convention. This view has now been declared to be English law. According to Part 2, para 7, of Schedule 5 of the Private International Law (Implementation of Agreements) Act 2020:
For the purposes of Article 16 of the 2005 Hague Convention, as it has the force of law in the United Kingdom by virtue of section 3D( 1) of the Civil Jurisdiction and Judgments Act 1982 (as inserted by section 1(2) of this Act), the date on which the 2005 Hague Convention entered into force for the United Kingdom is I October 2015, and accordingly reference in the Convention to a Contracting State are to be read as including, without interruption from that date, the United Kingdom.
That will be conclusive so far as any proceedings before an English court are concerned. It is not possible to say whether a court in any other State to which the Convention applies will see the matter in the same way, or will see the declaration of view by the United Kingdom as decisive. It is obvious that this provision is inapplicable to a court outside England: it would be just as ineffective, to any court outside England, if the United Kingdom were to have legislated to deem itself to have been a State bound by the Convention since 2005.
The approach which will be taken by a court in a Member State, or by the European Court, is not something over which the United Kingdom has legislative power, and if any of those courts takes the view that ‘the United Kingdom as a Member State of the European Union’ and ‘the United Kingdom as an independent state’ are two different legal entities, there is nothing the United Kingdom can do to stop them. Life would be simpler and easier if it were simply accepted that the United Kingdom has only ever been the United Kingdom, whatever other regional or international organisations it belonged to, and no matter what happened to it while it belonged to them. If, however, a more difficult view is taken by a court outside the United Kingdom, which allows itself to be persuaded that an agreement for the English courts made in 2019 is ineffective under the Convention if proceedings are brought in 2021, an English court will take a different view and, if appropriate, will be able to give effect to it by anti-suit injunction.
- [1] On the question of material dates, the position of the United Kingdom as a possible non-Member State of the European Union is grimly complicated and is described at the end. 2 There is no explanation given to pinpoint the date of institution of proceedings. In principle, therefore, it should be for the court whose proceedings they are to define what it means to institute proceedings (for example, filing of writ, service of writ, issue of claim form) in that court. In England, it will probably be the date of issue of the claim form. It would not be correct to transpose the date of seisin rule from Art. 30 of the Lugano Convention to answer this different question. 3 This account is given on the footing that there will be no agreed postponement of the date which defines the Completion of the Implementation Period. 4 The complication of the apparent scintilla temporis (in fact, a gap of an hour) between Completion Day as defined by the Withdrawal Agreement (see Chapter 2, para. 2.01, above) and the relevant first day of the month of accession to the Convention (specified by Art. 31(1)), is an illusion if one takes the reference in Art. 31(1) to be to 1 January 2021 in the Netherlands (the Depositary State), which will in fact be 11pm GMT on 31 December 2020 in the United Kingdom.
