[Hague-jur-commercial-law] Monday April 26 (article 5)

[Manon Ress]

Another sunny day at The Hague.

Monday 26, 2004 Summary

Proposals for the non unified legal systems and IP are sent to the
drafting committee.  There are many issues left.
Australia asked to explain its position on copyright (the del had asked to
exclude then withdrew) and how it was important if not excluded to look at
the public policy exception in article 5 and 7.

The president asked the EU to explain its proposal on irreconcilable
judgments (it will be fixed by the drafting committee), then the Russian
federation explained its proposal to limit the convention to money
judgments (not much support)…then there were discussion on several
documents relating to Article 5 and 7.  Again the issues were whether it’s
about changing national law or being flexible in 5 and 7 by having good
escape clauses.
Many of the problems (that we saw during discussion on how to exclude
asbestos related claims, joint venture etc.) could be solved by taking out
strict and artificial rule in Article 5.

The US proposal for the obligations of a court not chosen is the following

Article 5

1.  If the parties have entered into an exclusive choice of court
agreement designating a court or the courts of a contracting state, a
court in a contracting state other than the State of the chosen court
shall suspend or dismiss the proceedings unless -

a) the agreement is null and void
b) a party lacked the capacity to enter into the agreement under the law
of the state of the court seized;
c) giving effect to the agreement would lead to a serious injustice or
would be manifestly contrary to fundamental principles of public policy
d) as a result of changed circumstances the agreement cannot be performed
e)the chosen court is unable under this convention to hear the case;