![]() ![]() Broadly speaking, and as detailed below, the Convention’s drafters sought to replicate the basic terms of the New York Convention, but in the context of forum selection clauses, providing for the presumptive validity and enforceability of choice-of-court agreements and the presumptive enforceability of national court judgments where jurisdiction was based on such a forum selection provision. The Convention was the product of a hasty two-year process (between 20), which sought to produce at least a limited measure of success for the Hague Conference following the failure of negotiations on a global jurisdiction and judgments convention. The Convention was drafted under the auspices of the Hague Conference on Private International Law (“ Hague Conference”). ![]() Given the Convention’s grave defects, states should not ratify the Convention and, if they have done so, they should exercise their right to withdraw from it promptly. As discussed in this and the following two posts, that reluctance is wise. A previous post on the Convention’s reception touches upon some of the issues that will be discussed in this post. In sum, this series of posts argues that the Convention is gravely flawed and is not suitable for ratification, either generally or by the vast majority of states around the world.Īs a preliminary matter, the Convention seeks to transpose the New York Convention’s legal regime, which was designed specifically for international arbitration, to the very different context of forum selection clauses and national court judgments. By seeking to do so, the Convention first ignores the realities of endemic corruption among various judiciaries and inexperience and lack of independence in many judicial systems, thereby exposing litigants to very substantial risks of procedural unfairness and arbitrary or corrupt adjudicative proceedings. Second, the Convention also significantly dilutes important protections that the New York Convention provides: party autonomy and procedural fairness. Those dilutions materially exacerbate the risks that arise from the Convention’s basic structure and terms.Īpart from a few outliers, most states have been reluctant to ratify the Convention. The following two posts discuss the principal defects of the Convention ( Part II and Part III), focussing on its failure either to protect the parties’ autonomy in commercial matters or the procedural integrity of international dispute resolution. This post summarizes the drafting history and basic terms of the Convention. This post is the first in a three-part series that seeks objectively to assess the costs and benefits of the Convention. Among other things, the Convention is said to ensure respect for party autonomy (by giving effect to forum selection agreements) and to maximize efficiency (by permitting relatively easy recognition and enforcement of foreign court judgments).ĭespite these promotional efforts, there has been virtually no critical assessment of the Convention. The Convention has been endorsed as a global instrument, appropriate for ratification by all states, that establishes an alternative to international arbitration for the resolution of international business disputes in national courts. Over the past decade, the 2005 Convention on Choice-of-Court Agreements (“ Convention”) has been vigorously promoted by the Hague Conference on Private International Law’s Permanent Bureau, the European Union and others.
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