Hague Choice of Court Agreements Convention 2005: Background, negotiations, analysis and current status

Abstract

First paragraph: This article is in part a review article for a new book by two of my colleagues, who shared the journey through the negotiations of the ugly caterpillar, the failed Hague Judgments Convention, that metamorphosed into the beautiful butterfly of the Hague Choice of Court Agreements Convention. Ron Brand and Paul Herrup were two prominent members of the US delegation at The Hague. Paul was a government lawyer from the Justice Department and Ron a leading academic from the University of Pittsburgh School of Law. Their book has resisted the temptation to expend a lot of words analysing the failed Hague Judgments Convention and the process whereby the Choice of Court Convention was agreed, though this is covered in a short opening chapter. For readers who did not participate in those negotiations that story is likely to be of marginal interest and, more significantly, may be of little help in interpreting the Choice of Court Convention. Focus on how to interpret the Convention is one of the authors’ strong themes throughout the book and in particular in a carefully thought through chapter on this topic. The heart of the book is a systematic Article-by-Article analysis of the text of the Choice of Court Convention. I was sceptical whether this would add much value to the already published official explanatory report on the Convention by Professors Trevor Hartley and Masato Dogauchi but the authors have bravely made it easy for the reader to confirm or confound any scepticism on that count by printing that explanatory report along with the text of the Convention as an Appendix to the book. In addition a few extracts from the draft explanatory report on the failed Judgments Convention by Professors Peter Nygh and Fausto Pocar are carefully selected by the authors and put together in another Appendix. Thus the book is an invaluable one-stop shop for the primary materials on the Convention. The book is not just a second, unofficial, explanatory report on the Choice of Court Convention: it also contains a few chapters on the current law in the United States on how choice-of-court clauses are handled, on current and planned laws on recognition and enforcement of judgments in the United States, and on the relative merits of the Choice of Court Convention and New York Arbitration Convention. However, this article will examine none of the material in the book after the Article-by-Article analysis.