New Article on the Hague Convention on Choice of Court Agreements
Posted on February 7, 2011
This blog covers two areas: judicial assistance to international courts or arbitral tribunals; and enforcement of international arbitral awards. There is an obvious gap in our coverage: what about enforcement of the judgments of foreign courts? The reason for the gap should be no mystery to lawyers in the field: there is no multilateral convention in force on the recognition and enforcement of foreign judgments to which the United States is a party. Recognition and enforcement of foreign judgments in the United States is generally governed by the law of the state where recognition and enforcement is sought (most U.S. states have enacted either the Uniform Foreign Money Judgment Recognition Act or the updated Uniform Foreign Country Money Judgments Recognition Act). Recognition and enforcement of U.S. judgments abroad, however, can be a challenge. The United States was one of the prime movers behind the negotiation of the Hague Convention on Choice of Court Agreements, and in 2009 both the U.S. and the E.U. signed the convention (the only other state to have notified the depository of its approval of the treaty is Mexico, which acceded to it in 2007). The scope of the Convention is tailored—it applies only to international cases where the parties have made an exclusive choice of court agreement in a civil or commercial matter (though states may agree on a reciprocal basis to extend the coverage of the Convention to non-exclusive choice of court agreements). It is narrower, for example, than the Hague Service and Evidence Conventions, which apply to tort claims as well as contract claims, and which do not require the parties expressly to have “opted in.” But it does nicely parallel the New York Convention, which I think will be part of its appeal.
Peter Arnt Nielsen has a new article on The Hague Judgments Convention in the new issue of the Nordic Journal of International Law. (HT to Jacob Katz Cogan of International Law Reporter). The article outlines the history of the negotiation of the Convention, and in particular the tensions between the US position and the position of the civil law states that led to the Convention taking the form it has. It also provides a textual analysis of the scope of the Convention, focusing both on the exclusive jurisdiction provisions (vesting jurisdiction to determine a contractual dispute exclusively in the court chosen by the parties) and the recognition and enforcement provisions (providing a mechanism for recognition and enforcement of the judgments that result). And it ends with an appreciation of the work of the Hague Conference and the states that negotiated the Convention. I recommend the article as an introduction to the Convention, which, if ratified here and in Europe, may become as important or more important to practice than the other conventions in the field of international judicial assistance.