purpose of the present contribution is to laid down the evolution of the
appreciation of the importance of the jurisdiction clauses in International
The importance of
such clause was consecrated by the Hague Convention on Choice of Court Agreements of 30 June 2005
in order to harmonize at least some of these issues, and to create greater
predictability and reliability in this field.
Convention aims to ensure three basic rules, each of those subject to certain
exceptions: first, for the designated court to assert jurisdiction, essentially
excluding judicial discretion under the forum
non conveniens doctrine; second, for any
other court to decline jurisdiction; and finally to recognize and enforce
judgments rendered by a designated court abroad, without a review of the merits
of the case.
The report of 29
June 2010 on the implementation and review of Brussels I
Regulation No 44/2001 completes this evolution and refers to this Convention in
Finally, this report states that the Brussels I
Regulation No 44/2001 should be amended in order to allow a reflexive
effect to be given to exclusive choice-of-court clauses in favor of third
element set out a substantial evolution in the approach of the current Brussels
I Regulation No 44/2001 which is only
limited to the jurisdiction clauses in favor of State Member’s courts.
The importance of
jurisdiction clauses in Commercial International Contracts
1.- Jurisdiction clauses in which parties of a contract
provide, for example, a specific court, or the courts of a specific country to
have jurisdiction over disputes arising between them in connection with that
contract, are widely utilized.
A survey prepared for the Hague
Conference on Private International Law (2002) found that such
clauses are particularly common in certain industries, such as insurance
contracts, cross-border distributorships, loan contracts, guarantees and
international commercial agreements.
Despite they prevail in contracts, national systems vary considerably as to
the prerequisites of choice of court clauses.
While a number of countries place strict formalities on the acceptance of
such clauses, such as the identification of a particular court, other countries
also limit the possibility of choice of court clauses to business-to-business
(B2B) contracts, or provide special requirements and limitations for clauses
For instance, the Brussels I Regulation n°44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement
of judgments in civil and commercial matters allows choice of court
clauses in consumer contracts, which depart from the specific consumer
jurisdiction rules set out in the Regulation, only under strictly limited
conditions, for example if the agreement is entered into after the dispute has
arisen (Art. 17).
The forum non conveniens
doctrine and the jurisdiction clauses in US
2.- The forum
non conveniens doctrine, a legal doctrine
coming mostly from common law countries, allows courts to refuse to hear an
action because jurisdiction might be more appropriately or efficiently asserted
by in an alternate forum.
In practice, however, for example in the US, courts will almost never rely
on this doctrine so long as there is any plausible connection to the legal
forum selected by the parties. Legal precedent has created a strong presumption
that a forum freely selected by the parties is valid.
Hence, the party wishing to void a choice of court clause will have a heavy
burden of proof in establishing that the chosen venue is improper.
The adoption of
the Hague Convention on Choice of Court Agreements
3.- In order to harmonize at least some of these issues, and
to create greater predictability and reliability in this field, the 65 Member
States of the Hague
Conference on Private International Law adopted, on June 30, 2005, a
new treaty, the Hague Convention on Choice of Court Agreements.
In 1992 the US proposed that the
Hague Conference for Private International Law should devise a worldwide
Convention on Enforcement of Judgments in Civil and Commercial Matters.
member states of the European Community saw in the US proposal an opportunity
to harmonize the bases of jurisdiction and also had in mind the far-reaching
bases of jurisdiction in some countries outside of Europe as well as the dual
approach of the Brussels and Lugano Conventions (i.e.
Bussels I Regulation and Convention Lugano of 2007) which combines recognition and enforcement
of judgments with harmonization of bases of jurisdiction (double convention).
efforts, the Hague Conference did not succeed in devising a convention that
laid down common rules of jurisdiction in civil and commercial matters.
4.- After long negotiations
the Conference was only able to agree on the lowest common denominator and
accordingly concluded the Convention of 30 June 2005 on Choice of Court
Agreements (Choice of Court Convention).
This Convention aims to do for choice of court agreements what the New York
Convention of 10 June 1958 on the Recognition and Enforcement of Foreign
Arbitral Awards has done for arbitration agreements.
The three basic
rules of the Convention and the current status of its ratification
5.- In principle, the
Convention applies only to exclusive choice of court agreements. However an opt-in
provision allows contracting states to extend the rules on recognition and
enforcement to non-exclusive choice of court agreements as well.
Generally, the Convention aims to ensure three basic rules, each of those
subject to certain exceptions:
the chosen court in a contracting
state must hear the case when proceedings are brought before it and may not
stay or dismiss the case on the basis of forum non conveniens;
any court in another contracting state before which proceedings are
brought must refuse to hear the case;
a judgment given by the chosen court must be recognized and enforced in
principle in all contracting states, without a review
of the merits of the case.
European instruments like the Brussels I Regulation and the Lugano
Convention will continue to apply in appropriate cases albeit with a somewhat
European Union has exclusive competence to sign and ratify the Convention.
6.- The Convention was signed up by the
European Union in April 2009, by the United States in January 2009 and by
Mexico in 2007. Since Mexico had already acceded in 2007, only one
more ratification or accession is needed for the entry into force of the
Convention, which is open to all States.
However at this stage, the European Union and the USA
have not ratified the Convention which is not entered into force yet.
the evolution of jurisdiction clauses in the future Brussels I Regulation
7.- When this Convention enters into force, it shall harmonize at least some of these issues, and to create
greater predictability and reliability in this field.
In this respect, the report of 29 June 2010 on the implementation and review of Brussels I
Regulation (2009/2140(INI)) on jurisdiction and the recognition and enforcement
of judgments in civil and commercial matters refers to the Convention.
Finally, the report states
that the Brussels I Regulation should be amended in order to allow a reflexive effect to be given to exclusive
choice-of-court clauses in favor of third States’ courts.