COCA: Bad News on US Ratification

I’ve been following the efforts to ratify the Hague Choice of Court Agreement Convention, COCA, for a long time. As readers will remember, the United States has signed the Convention but not ratified it. The hold-up has to do with disputes about how to implement the non-self-executing Convention in US law. For a summary, you may want to read this post from about a year ago. In summary: the bar and several academics have proposed a federal implementing statute analogous to the FAA, which implements the New York Convention. On the other hand, the Uniform Law Commission, which promulgates uniform laws for states to enact, has taken the view that the Convention should be implemented through a uniform law, supplemented by a federal statute, but with state law clearly in the driver’s seat.

A working group of the ABA Section of International Law, led by Glenn Hendrix (I was involved in a very minor way), had proposed a “cooperative federalism” compromise that the ULC had viewed unfavorably on the grounds that it gave too much preemptive effect to federal law and made enforcement a question of federal rather than state law. Now I’ve learned that in November, a committee of the ULC has formally rejected the compromise proposal. It seems likely that this is the end of the line, for now, of US attempts to ratify COCA, as it does not seem that there will now be an effort to push the “federal-only” approach to implementation in Congress.

Attention will now turn to the Judgments Convention, currently being negotiated in the Hague. My initial reaction is that it’s unreasonable to think the US would ratify or even sign an eventual judgments convention if it cannot even ratify COCA, which is much less ambitious than a judgments convention. On the other hand, maybe having two conventions in play will create some opportunities for compromise that don’t exist now.

It’s also unclear how the change in administration will effect efforts to ratify COCA or how it will effect private international law generally. Is private international law going to be an area of focus in the State Department or the Justice Department over the next four years? Time will tell. I suspect we will hear nothing about it in the confirmation hearings for the nominees for Secretary of State and Attorney General.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. Folkman also serves as an arbitrator and is a member of the Commercial and Consumer Panels of the American Arbitration Association. 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 treatise on International Aspects of US Litigation (J. Berger, ed. 2017), 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 and 2014 - 2016.

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