[Hague-jur-commercial-law] "Choice of Court Clauses", by Peter Trooboff. The National Law Journal. Jan. 19, 2004

[Michael Sondow]

I read this article with some interest, as Mr. Trooboff is here speaking
to his professional colleagues and, one could assume, is being candid
(although whether or not attorneys treat other attorneys with less
disingenuousness than they treat the public remains to be seen). Two of
the matters that Mr. Trooboff raises particularly caught my attention.
One is his reference to arbitration and the other his summary of the
treaty's purpose.

Regarding the treaty's relationship to arbitration proceedings, Mr.
Trooboff says: "The proposed convention would avoid interference with
arbitration by precluding its application to arbitral proceedings and by
denying enforcement to a judgment if
the issuing court acted contrary to an arbitral agreement among the
parties. Art. 1(5)." The tenor of this remark is clearly determined by a
prejudice for arbitration and against court proceedings, a prejudice
which has become so generalized within the legal profession that it has
succeeded in garnering the power necessary to enact a piece of
legislation as contrary to Constitutional principles as the 1958 New
York Convention on the Recognition and Enforcement of Arbitral Awards, a
piece of work that puts extra-judicial proceedings before judicial ones,
thereby opening the door to a redefinition of law as no longer the
fundamental and guiding principle of a democratic society, much in the
way that NATO's Hague War Crimes Tribunal has redefined the judiciary as
not independent from the prosecution and therefore no longer impartial,
in effect rendering it a branch of prosecution. 

Locutions such as "avoid interference" are a dead giveaway to Mr.
Trooboff's prejudice for arbitration, a process in which he and his
brethren at the American Bar Association can exert influence beyond what
a court would (or should) tolerate. Why shouldn't a court "interfere"
with arbitration, as for example in overturning an arbitration judgment?
If the court, as the purveyor of law, wields the fundamental principle
in democratic society, it not only should interfere but is obligated to
do so if it finds that the lesser forum - arbitration - erred or was
unfair. Conversely, if the Hague Convention is fair, why shouldn't it be
applied to arbitration proceedings? Mr. Trooboff and the ABA want, as
usual, to have their cake and to eat it, too: a Hague Convention for
when they can get a favorable jurisdiction for their client in a
particular national court, or simply when the claimant in an action; and
arbitration to fall back on when they cannot rely on a forum-shopped
court, or when defending. 

As to "denying enforcement to a judgment if the issuing court acted
contrary to an arbitral agreement among the parties", this turns the
world topsy-turvy, and exemplifies the arrogance of which the
underminers of law are capable. What it says is that the Hague
Convention will specifically state that a decision of a court of law
will be void upon the expressed desire of a party to a contract that the
law of that court not be applicable to the party. Is this not absurd
under any concept of the principle of law as we know (knew?) it? Yet, it
is the new guiding principle of "arbitration (that is, non-judicial
proceedings undetermined by any written law) over law". Now, not only
will non-judicial proceedings undetermined by written law be permitted
and encouraged, but courts of law will be considered to have acted
erroneously if they issue judgments that impinge on the prerogatives of
arbitration. This undermining of the principle of law has been
successful in the U.S. and is now, via the Hague Convention and other
such treaties, to be enshrined in international law. By inserting
pro-arbitration, anti-law articles like Art.1(5) in international
treaties, Mr. Trooboff and the ABA continue their campaign to undermine
the principle of law.

Regarding the ultimate purpose of the Convention, Mr. Trooboff
summarizes: "The key to the effectiveness of the proposed convention is
the prohibition of any review of the merits of the judgment by the
courts of another party to the convention. Art. 7(2)". Here in a
nutshell is the U.S. legal profession's interest in the Convention with
euphemisms like "stability" and "predictability" stripped away. What the
Convention proposers want is to eliminate the possibility that a country
having an effective democratic legal system capable of assessing
correctly a coercive contract could override an unfair judgment issuing
from a forum-shopped national court or arbitration proceeding. The Hague
Convention is to be an insurance policy against judicial review. This is
why all dialogue regarding an international court of appeal for
jurisdiction has been squelched.

Michael Sondow
**********************************************************************
Law as it is currently practiced in many places is the perversion of 
reason and logic so as to make them serve the purpose of seeming to 
justify the theft of one man's property by another. This has come about 
because the institutions that select, train, and license lawyers have 
been usurped by devotees of fraud in the employ of the banks and other 
financial corporations, themselves criminal enterprises. Law no longer 
serves the function of protecting the weaker from the stronger, as it 
was originally intended, but of denying to the weak even the recourse 
of a fair hearing, which, by an appeal to the hearts and minds of the 
citizenry, might otherwise have restored to them what the stronger have 
illegitimately taken.
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