The Choice of Court Agreement Convention On The Verge

Friend of Letters Blogatory Pietro Franzina reports that the European Commission has adopted a proposal for the ratification of the Hague Convention on Choice of Court Agreements by the EU. Under Article 31, two ratifications are necessary for the Convention to come into force, and Mexico has already ratified it, so assuming the Council accepts the proposal, the Convention is on the verge of finally coming into force.

Now the ball is in the United States’s court. As we have seen, an argument about the role of US state and federal law in the implementation of COCA, which must be mystifying to the rest of the world, has delayed US ratification of the Convention. My basic view (from the prior post):

My own view on this is probably that the FAA approach is best, because nothing in the real world turns on whether a court applies a federal law in the first instance or applies state law in the first instance but then finds the state law preempted if it conflicts with the federal law. Why create more complication? But I think that precisely because the ULC approach is essentially the same in outcome as the State Department approach, it should not be regarded as unacceptable. In short, I would hate to see COCA derailed because the federal government and the states decide to use this disagreement as a proxy for wider disagreements about state and federal authority. Let’s get the thing implemented and ratified, even if it means making do with the baroque approach the ULC demands.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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