The Hague Convention on Jurisdiction and Judgments: The Way Forward
| Date | 01 July 2003 |
| Published date | 01 July 2003 |
| DOI | http://doi.org/10.1111/1468-2230.6604001 |
THE
MODERN LAW REVIEW
Volume 66 July 2003 No 4
The Hague Convention on Jurisdiction and
Judgments: The Way Forward
William E. O’Brian Jr
n
This article analyses the proposed Hague Convention on Jurisdiction and
Judgments, which has been the subject of lengthy and ongoing negotiations. The
issues that continue to divide the parties centre on differences between approaches
to jurisdiction broadly similar to those used in Europe, and the approach used in
the United States. The most comprehensive draft of the Hague Convention starts
from a European approach, but makes a number of concessions to the US
approach. The United States has rejected this draft, and the parties appear to have
accepted this rejection and are now discussing whether a narrower convention can
be drafted upon which the parties can reach consensus.
The article argues that the broad draft convention was a sound one, that it made
all of the concessions to the US approach that were warranted, and that the goal of
harmonising world approaches to jurisdiction in civil cases would be better
promoted by adopting the broader convention, if necessary without the
participation of the United States.
Ten years ago, the United States proposed that the members of the Hague
Conference on Private International Law attempt to negotiate a world-wide
convention on jurisdiction and enforcement of judgments. Such a convention
would be a welcome development to most of the world, as it would tend to avoid
wasteful duplication of proceedings and hinder efforts by debtors to avoid
legitimate debts by transferring assets abroad. In addition, many countries are
attracted to the idea of a convention on jurisdiction and judgments by a desire to
limit what they view as exercises of exorbitant jurisdiction by other countries. To
take only one example, French courts have jurisdiction over virtually any case in
which the plaintiff is a French national.
1
Although France is bound not to exercise
such jurisdiction against persons domiciled in most other countries in Western
Europe as a result of its accession to the Brussels and Lugano Conventions,
2
absent such agreements, French courts can and do exercise jurisdiction on this
n
School of Law, University of Warwick. The author wishes to thank Roger Leng, Julio Faundez
and Jorge Guira, as well as the anonymous referees for this journal, for their helpful comments on
previous drafts.
1 French Civil Code, Article 14.
2 Brussels Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial
Matters, 27 September 1968, 1998 OJ (C27) 1 (as amended), Article 3; Convention on Jurisdiction
and Enforcement of Judgements in Civil and Commercial Matters, 1988 OJ (L319) 24, Article 3.
rThe Modern Law Review Limited 2003 (MLR 66:4, July). Published by Blackwell Publishing Ltd.,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA. 491
basis. A world-wide convention would eliminate this and similar devices employed
by other countries.
Since 1958 there has been a world-wide convention on enforcement of foreign
arbitration awards, the New York Convention,
3
which is generally thought to
work well.
4
The fact that parties can generally enforce foreign arbitral awards, but
not foreign judgments, creates an incentive for them to prefer arbitration to
litigation even if the latter might otherwise be more suitable. A world-wide
convention on jurisdiction and recognition of judgments could redress this
imbalance, with the result that parties would choose between litigation and
arbitration on the basis of which form of dispute resolution better addressed their
needs, rather than which could be more easily enforced outside the rendering
country.
Although little progress was made during the first five years after this proposal,
the subsequent five year period saw remarkable progress, including the adoption
of a preliminary draft convention in October 1999 that had the cautious support
of most of the world’s leading economic ‘players’.
5
The major exception was,
interestingly, the United States itself, which advised the Conference early the
following year that the October 1999 Draft had no prospect of being ratified by
the United States.
6
The reasons for the United States’ objections will be explored
in depth below: essentially, they were that the Hague Draft was too much like
the European approach to jurisdiction, and not enough like the US system of
jurisdiction.
There followed several attempts to arrive at a compromise, culminating in a
draft of June 2001 that is remarkable for how little consensus it demonstrates.
7
Following the recent diplomatic conference in April 2002, the members have
agreed to send the proposed convention to a committee of experts, which has
recently produced a more modest convention limited to certain areas on which
an agreement still seems possible.
8
These areas are quite limited, perhaps
extending only to enforcing choice of court agreements in business-to-business
contracts.
9
This Article will analyse the principal issues that have divided the Hague
Conference, taking as its starting point the October 1999 Draft Convention. The
disputes are primarily between proponents of the European approach expressed in
the Brussels and Lugano Conventions and most recently in Council Regulation
3 United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards, 330
UNTS 3 (opened for signature 10 June 1958).
4 See A. Redfern and M. Hunter, Law and Practice of International Commercial Arbitration
(London: Thomson Professional Pub, 3rd ed, 1999) paras 10–22.
5 Discussions of the history of the negotiations include A. T. Von Mehren, ‘Drafting a Convention
on International Jurisdiction and the Effects of Foreign Judgments Acceptable World-wide: Can
the Hague Conference Project Succeed?’ (2001) 49 Am J Comp L 191; R. A. Brand, ‘Intellectual
Property, Electronic Commerce and the Preliminary Draft Hague Jurisdiction and Judgments
Convention’ (2001) 62 U Pitt L Rev 581.
6 Letter from Jeffrey Kovar, Assistant Legal Advisor of the US Department of State and Head of
the US delegation to the Hague Conference, to J. H. A. van Loon, Secretary General of the Hague
Conference, 22 February 2000 (hereafter ‘Kovar Letter’).
7 Summary of the Outcome of the Discussion in Commission II of the First Part of the Diplomatic
Conference 6–20 June 2001, Preliminary Document No 15, available on the Hague Conference’s
website, www.hcch.net (last visited 7 March 2003) (hereafter ‘June 2001 Report’).
8 See Preliminary Result of the work of the Informal Working Group on the Judgement Project,
Preliminary Document No. 8.
9 Reflection Paper to Assist in the Preparation of a Convention on Jurisdiction and Recognition
and Enforcement of Foreign Judgments in Civil and Commercial Matters, Preliminary Document
No 19 (Reflection Paper), available on the Hague Conference’s web site, www.hcch.net.
The Modern Law Review [Vol. 66
492 rThe Modern Law Review Limited 2003
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