It should however be said that the 2005 Hague Convention has a more limited scope than the European rules because it applies only where the parties have agreed upon a choice of court agreement, while the Brussels and Lugano conventions (as well as Regulation 44/01) are also applicable in the absence of a choice made by the parties.
Particularly, the convention applies to international cases of exclusive choice of court agreements concluded in civil or commercial matters (with the exclusion of consumer and employment contracts as well as other specific matters). The choice of court agreement must be concluded in writing ‘or by any other means of communication which renders information accessible so as to be usable for subsequent reference’ (Article 3): we assume that it means also by fax or e-mail.
The effects of a choice of court agreement are mainly three:
- The court chosen shall have jurisdiction to decide the dispute (unless the agreement is null and void under the law of the State of the chosen court), and consequently cannot decline jurisdiction in favour of another court (Article 5);
- The court not chosen shall refrain from hearing the case, even if it would have had jurisdiction under its national law (Article 6). However, the obligation of the court not chosen to refuse jurisdiction is subject to a number of exceptions (e.g. if for exceptional reasons beyond the control of the parties, the agreement cannot reasonably be performed).
- A judgment given by a court of a Contracting State designated in an exclusive choice of court agreement shall be recognised and enforced in other contracting States, subject to a number of conditions set forth under Article 8 and with the exceptions provided by Article 9.
Pursuant to Articles 19 et seq., contracting States may limit the effects of the convention, by making specific declarations (e.g. they may not apply the convention to specific matters). In addition, a contracting State may declare that its courts will recognise and enforce judgments given by courts of other contracting States designated in a non-exclusive choice of court agreement, subject to a reciprocal declaration and subject to the conditions provided by Article 22.
The 2005 Hague Convention will enter into force three months after the deposit of the second instrument of ratification, acceptance, approval or accession of a contracting State.
The text of the 2005 Hague Convention can be found in the Int’l Conventions section of the site, together with the Brussels and Lugano conventions, mentioned above. The text of Regulation 44/01 is available in the Eu Section of the IDI website.
