[Hague-jur-commercial-law] New Draft and next steps

[Manon Ress]

*Some of you are dying to read the new draft, right? Here it is as a cut 
and paste at the end of this message.
*

*According to the President the negotiators still have to discuss:
Article 1:
maritime matters
Tenancy
IP (see l)
incidental question
Article 7 (and 7bis or EC proposal)
then they have articles with titles only.
Other big issues that will come up later include: disconnection clause, 
relation between the Convention and other instruments, final clauses, 
the time problem (see footnotes for 4.4, 5.f), 15 and 16)
*

*What is in the draft is basically "approved" by consensus by the 
Special Commission members. However some articles might be revisited.
*

*The next Special Commission meeting will take place either March 3-9 or 
April 20 to 29, 2004 (4 and a half day within either period) depending 
on various factors.
*

*The Diplomatic Conference will be either october 18-Nov 3 or sometime 
in December 2004. Mark your calendar.
*

*Note: these are my personal notes. This is NOT the OFFICIAL text that 
will be provided later by the secretariat. I underlined language that 
was changed (added, deleted or modified). There are probably some 
mistakes. I did not include the "form" that was too boring. If you want 
it, I'll fax it.
*

Manon
**

**

*Proposal by the Drafting Committee*

*DRAFT TEXT ON _EXCLUSIVE_ CHOICE OF COURT AGREEMENTS*

The States signatory to the present Convention,

Desiring to promote international trade and investment through enhanced 
judicial cooperation,

Believing that such enhanced cooperation requires a secure international 
legal regime that ensures the effectiveness of choice of court 
agreements by parties to commercial transactions and that governs the 
recognition and enforcement of judgments resulting from proceedings 
based on such agreements,

Have resolved to conclude the following /Convention on Choice of Court 
Agreements/ and have agreed upon the following provisions:


        chapter i _SCOPE AND DEFINITIONS_

/Article 1 Scope/

1. This Convention shall apply to _exclusive_ choice of court concluded 
in civil or commercial matters.

2. This Convention shall not apply to _exclusive_ choice of courts 
agreement–

a) agreements between a natural person acting primarily for personal, 
family or household purposes (the consumer) and another party acting for 
the purposes of its trade or profession, or between consumers;

b) individual or collective contracts of employment.

3. This Convention shall not apply to proceedings _that have as their 
main object any of the following matters_ {Note from Manon: “main” will 
be dropped of the final final draft }-

a) the status and legal capacity of natural persons;

b) maintenance obligations;

c) _other family law matters, including _matrimonial property regimes 
and other rights and obligations arising out of marriage or similar 
relationships;

d) wills and succession;

e) insolvency, composition or analogous matters;

f) _contracts for the carriage of goods by the sea [and other admiralty 
or maritime matters];_

_ _

g) _anti-trust / competition matters_;

h) nuclear liability;

i) rights /in rem/ in immovable property;

j) validity, nullity, or dissolution of legal person_s or the validity 
of decisions of their organs;_

k) validity of patents, trademarks _protected industrial designs, or 
layout designs of integrated circuits;_

_l) [validity of other intellectual property rights the validity of 
which depends on, or arises from, their registration, except copyright]; or_

_ _

_m) validity of entries in public registers._

_4. Proceedings are not excluded from the scope of the Convention if a 
matter referred to in paragraph 3 arises merely as an incidental question. _

5. This Convention shall not apply to arbitration and proceedings 
related thereto, nor shall it require a Contracting State to recognise 
and enforce a judgment if the exercise of jurisdiction by the court of 
origin was contrary to an arbitration agreement.

6. Proceedings are not excluded from the scope of the Convention by the 
mere fact that a government, a governmental agency or any person acting 
for a State is a party thereto.

7. Nothing in this Convention affects the privileges and immunities of 
sovereign States or of entities of sovereign States, or of international 
organisations.

/Article 2 Definitions/

1. In this Convention, _“exclusive choice of court agreement” means an 
agreement whereby two or more parties that meets the requirements of 
paragraph 3 and designates, for the purpose of deciding disputes which 
have arisen or may arise in connection with a particular legal 
relationship, the courts of one State or one specific court to the 
exclusion of the jurisdiction of any other courts._

_ _

_2. A_ choice of court agreement which designates the courts of one 
State or one specific court _shall be deemed to be exclusive unless the 
parties have expressly provided otherwise._

_ _

_3. An exclusive choice of court agreement must be entered or evidenced-_

_ _

_a) in writing; or_

_ _

_b) by any other means of communication which renders information 
accessible so as to be usable for subsequent reference._

_ _

_4. An exclusive choice of court agreement that forms part of a contract 
shall be treated as an agreement independent of the other terms of the 
contract. The validity of the exclusive choice of court agreement cannot 
be contested solely on the ground that the contract is not valid._

_Article 3 Other Definitions_

_ _

_1. In this Convention_ “judgment” means any decision on the merits 
given by a court, whatever it may be called, including a decree or 
order, and a determination of costs or expenses by the court 
_(including_ an officer of the court_)_, provided that such 
determination relates to a judgment which may be recognised or enforced 
under this Convention.

2. For the purposes of this Convention, an entity or person other than a 
natural person shall be considered to be habitually resident in the State –

a) where it has its statutory seat;

b) under whose law it was incorporated or formed;

c) where it has its central administration; or

d) where it has its principal place of business.


      chapter ii jurisdiction

/Article 4 Jurisdiction of the chosen court/

1. _The court or courts of a contracting State designated in an 
exclusive choice of court agreement shall have jurisdiction to decide a 
dispute to which the agreement applies, unless the agreement is null and 
void under the law of that State._

_ _

_2. A court that has jurisdiction under paragraph 1 shall not decline to 
exercise jurisdiction on the ground that the dispute should be decided 
in a court of another State._

_ _

_3. Nothing in this Article shall affect rules on jurisdiction related 
to subject matter or the value of the claim, ot the internal allocation 
of jurisdiction among courts of a __Contracting__ __State__ [unless the 
parties designated a specific court]._

_ _

_4. The preceding paragraphs shall not apply if all the parties to the 
agreement are habitually resident [only] in the State of the chosen 
court [and the relationship of the parties and all elements relevant to 
the dispute are connected with that State]. 1_

_ _

_Footnote1 The relevant time for the purposes of that test (eg the time 
of the agreement and/or the time of commencement of the proceedings) 
remains to be discussed._

/Article 5 Priority of the chosen court/

If the parties have entered into an exclusive choice of court agreement, 
a court in a Contracting State other than the State of the chosen court 
shall decline jurisdiction or suspend proceedings unless -

_a) the agreement is null and void under the law of the State of the 
chosen court; _

_
b) a party lacked the capacity to enter into the agreement under the law 
of the State of the Court seised; _

_
c) giving effect to the agreement would lead to a very serious 
injustice; or would 2 be manifestly contrary to fundamental principles 
of public policy;_

_
d) for exceptional reasons the agreement cannot be reasonnably performed; _


e) the chosen court has decided not to hear the case; or
f) the parties are habitually resident [only] in the State of the court 
seised, and the relationship of the parties and all other elements 
relevant to the dispute, other than the agreement, are connected with 
that State. 3

_Footnote 2 One delegation suggested the inclusion of the word 
“otherwise” at this point._

_Footnote 3__ The relevant time for the purposes of that test (eg the 
time of the agreement and/or the time of commencement of the 
proceedings) remains to be discussed._

_ _

/Article 6 Interim measures of protection/

Nothing in this Convention shall prevent a party from requesting 
provisional and protective measures on an interim basis from any court 
or prevent any court from granting such measures.


        chapter iii recognition and enforcement

/Article 7 Recognition and enforcement/

A judgment given by a court of a Contracting State designated in a 
choice of court agreement shall be recognised or enforced in other 
Contracting States in accordance with this Chapter. Recognition or 
enforcement may be refused only _on the following grounds 5_ –

a) the agreement was null and void under the law of the State of the 
chosen court, unless the chosen court has determined that the agreement 
is valid;

b) a party lacked the capacity to enter into the agreement under the law 
of the requested State;

_c) the document which instituted the proceedings or an equivalent 
document, including the essential elements of the claim, was not 
notified to the defendant in sufficient time and in such a way as to 
enable him to arrange for his defence [or was not notified in accordance 
with the law of the State where such notification took place] [, unless 
the defendant entered an appearance and presented his case without 
contesting notification in the court of origin, provided that the law of 
the State of origin permitted notification to be contested];

_

d) the judgment was obtained by fraud in connection with a matter of 
procedure;

e) recognition or enforcement would be manifestly incompatible with the 
public policy of the requested State, in particular if the specific 
proceedings leading to the judgment were incompatible with fundamental 
principles of procedural fairness of that State. 6


(Footnote 6: The drafting committee was not able to accommodate the 
concerns of one member with respect to this paragraph, and considers 
there is an issue to be resolved. An alternative text was suggested:

(f) {Manon: this is a typo should be e)] recognition or enforcement 
would be manifestly incompatible with the public policy of the requested 
State where the specific proceedings leading to the judgment were 
seriously unjust with respect to procedural fairness,)

3. _Without prejudice to such review as is necessary for the purpose of 
the application of the provisions of this Chapter, there shall be no 
review of the merits of the judgment rendered by the court of origin, 
The court addressed shall be bound by the findings of fact on which the 
court of origin based its jurisdiction, unless the judgment was givin by 
default._

_ _

_3 A judgment shall be recognised only if it has effect in the State of 
origin, and shall be enforced only if it is enforceable in the State of 
origin._

_ _

_ _

_4. __recognition or enforcement may be postponed or refused if the 
judgment is the subject of review in the State of origin or if the time 
limit for seeking ordinary review has not expires. A refusal does not 
prevent a subsequent application for recognition or enforcement of the 
judgment._

_ _

/Article 8 Documents to be produced /

1. The party seeking recognition or applying for enforcement shall produce –

a)/ /a complete and certified copy of the judgment;

b)/ /if the judgment was rendered by default, the original or a 
certified copy of a document establishing that the document which 
instituted the proceedings or an equivalent document was notified to the 
defaulting party;

c)/ /all documents required to establish that the judgment has effect in 
the State of origin;

2. _If the terms of the judgment do not permit the court addressed to 
verify whether the conditions of this Chapter have been complied with, 
that court may require evidence of the exclusive choice of court 
agreement, and any other necessary documents._

_ _

_ _

_3. An application for recognition or enforcement may be accompanied by 
the form recommended and published by the Hague Conference on Private 
International Law. 7_

_ _

_Footnote 7 The Permanent bureau may make further suggestions in respect 
of an appropriate form of words for this paragraph._

_ _

_4. The court addressed may require a translation of any document 
referres to in this article._

/Article 9 Procedure/

The procedure for recognition, declaration of enforceability or 
registration for enforcement, and the enforcement of the judgment, are 
governed by the law of _requested _State so far as this Convention does 
not provide otherwise. The court addressed shall act expeditiously.

/_DELETED Article 10 Costs of proceedings_/

_ _

/Article 11 Damages/

1. A judgment which awards non-compensatory damages, including exemplary 
or punitive damages, shall be recognised and enforced to the extent that 
a court in the _requested_ State could have awarded similar or 
comparable damages. Nothing in this paragraph shall preclude the court 
addressed from recognising and enforcing the judgment under its law for 
an amount up to the full amount of the damages awarded by the court of 
origin.

2. _a) Where the debtor, after proceeding in which the creditor has the 
opportunity to be heard, satifies the court addressed that in 
circumstances, including those existing in the State of origin, grossly 
excessive damages have been awarded, recognition and enforcement may be 
limited to a lesser amount._

_ _

_b) In no event shall the court addressed recognise or enforce the 
judgment in an amount less that that which could have been awarded in 
the requested State in the same circumstances, including those existing 
in the State of origin,_

_ _

_3. In applying paragraph 1 or 2, the court addressed shall take into 
account whether and to what extent the damages awarded by the court of 
origin serve to cover the costs and expenses relating to the proceedings._

/Article 12 Severability/

Recognition or enforcement of a severable part of a judgment shall be 
granted where recognition or enforcement of that part is applied for, or 
only part of the judgment is capable of being recognised or enforced 
under this Convention.

/Article 13 Settlements /

Settlements to which a court _of a Contracting State designated_ in an_ 
exclusive_ choice of court agreement has _approved or which have been 
concluded in the course of proceedings before that court, and which are 
enforceable in the same manner as a judgment in the State of origin, 
shall be enforced under this Convention in the same manner as a judgment._


        chapter iv general clauses

/Article 14 _No Legalisation_/

/_ _/

_All documents forwarded or delivered under this Convention shall be 
exempt from legalisation or any other analogous formality_

/ /

/Article 15 Limitation of jurisdiction/

Upon ratification of this Convention, a State may declare that its 
courts may refuse to _recognize or enforce a judgment of a court in 
another Contracting State if all parties are habitually resident [only] 
in the requested State, and all other elements relevant to the dispute 
and the relationship of the parties, other than the exclusive choice of 
court agreement , are connected with the requested State. 8_

_ _

_Footnote 8 The relevant time for the purposes of that test (eg the time 
of the agreement and/or the time of commencement of the proceedings) 
remains to be discussed._

/Article 16 Limitation of recognition and enforcement/

Upon ratification of this Convention, a State may declare that its 
courts may refuse to recognise or enforce, as the case may be, a 
judgment of a court in another Contracting State if all parties are 
habitually resident _[only] _in the State addressed, and all other 
elements relevant to the dispute and the relationship of the parties, 
other than the _exclusive _choice of court agreement, are connected with 
the _requested_ State. 9

_Footnote 9 The relevant time for the purposes of that test (eg the time 
of the agreement and/or the time of commencement of the proceedings) 
remains to be discussed._

_Article 16a Limitation with respect to asbestos related matters_

_ _

_Upon signature, ratification, acceptance, approval or accession, a 
State may declare that it will no apply the provisions of the Convention 
to exclusive choice of court agreements in asbestos related matters._

/Article 17 Uniform interpretation/

In the interpretation of this Convention, regard shall be had to its 
international character and to the need to promote uniformity in its 
application.

/Article 18 Non-unified legal system/

In relation to a_ __Contracting__ __State__ in which two ot more systems 
of law apply in different territorial units with regards to any matter 
dealt with this Convention –_

_ _

_a) any reference to the law or procedure of a State shall be construed 
as referring to the law or the procedure in force in the relevant 
territorial unit;_

_ _

_ b) any reference to habitual residence in a State shall be construed 
as referring to habitual residence in the relevant territorial unit;_

_ _

_ _

c) _any reference to the court or courts of a State shall be construed 
as referring to court or courts in the relevant territorial unit; and_

_ _

_d) any reference to the connection with a State shall be construed as 
referring to the connection with in the relevant territorial unit;_

_ _

_2. Notwithstanding the preceding paragraphs, a __Contracting__ 
__State__ with two or more territorial units in which different systems 
of law are applied shall not be bound to apply the Convention to 
conflicts solely between such different systems of law._

_ _

_3. The court in a Contracting State with two or more territorial units 
in which different systems of law are applied shall not be bound to 
recognise or enforce a judgment from another Contracting State by reason 
that the judgment has been recognised or enforced by the court in 
another territorial unit of the same Contracting State under this 
Convention. _

_ _

_ _

/Article 19 Relationship with other international instruments/

This matter has not yet been discussed.


        chapter v final clauses

/Article 20 Signature, ratification, acceptance, approval or accession/

/Article 21 Non-unified legal system/

1. If a State has two or more territorial units in which different 
systems of law apply in relation to matters dealt with in this 
Convention, it may at the time of signature, ratification, acceptance, 
approval or accession declare that the Convention shall extend to all 
its territorial units or only to one or more of them and may modify this 
declaration by submitting another declaration at any time.

2. Any such declaration shall be notified to the depositary and shall 
state expressly the territorial units to which the Convention applies.

3. If a State makes no declaration under this Article, the Convention is 
to extend to all territorial units of that State.

/Article 22 Regional Economic Integration Organisations/

/Article 23 Entry into force/

/Article 24 Reservations/

/Article 25 Declarations/

/Article 26 Denunciation/

Article 27 Notifications by the Depositary


-- 
Manon Anne Ress
Consumer Project on Technology
www.cptech.org
PO Box 19367, Washington, DC 20036
manon.ress@cptech.org, voice: 1.202.387.8030, fax: 1.202.234.5176