[Hague-jur-commercial-law] Peter Trooboff Article on The Hague project

[Michael Sondow]

Dan Svantesson wrote:

> the proposed Convention
> would do well to include a provision along the lines of Article 4 paragraph
> 3 of the 1965 Hague Convention on the Choice of Court: "The agreement on the
> choice of court shall be void or voidable if it has been obtained by an
> abuse of economic power or other unfair means." 

Yes, indeed. That certainly would be the way to phrase it, so that it
applies directly to the initial trial forum. The present drafters have
cleverly included something that sounds similar to this, but which
doesn't work until the judgment reaches an enforcing country, which in
all likelihood will not wish to deny the original court's judgment so as
not to incur dissension with it. In other words, an extra stage acting
as a block to the escape/balance; and I suggest that this has been done
intentionally so as to make the escape/balance ineffectual.

> I have no doubt that the
> talented company lawyers that construct the choice of forum clauses will be
> able to identify forums that not only provide them with favourable liability
> limitations but also with party autonomy of the kind that would uphold also
> unfair choice of forum clauses.

This is what they are counting on, and why whole sections of corporate
law firms are to be devoted to forum shopping, as witness the ABA's new
guidelines for it.

> In other words, a stronger party nominating
> a forum would not choose a forum that would hold their choice to > be invalid.

Naturally. They will make a deal with one or another corporatist state
to use that state's courts. The seven continents that comprise our
beleaguered planet are unfortunately rife with states whose courts will
consider anything written on paper (or on a website) to be valid whether
it is fair or not. I can think of a few even in Europe. Won't they be
pleased to all of a sudden have work and publicity!

> Consequently, the fact that the validity of the choice is judged > by the
> chosen forum is troubling.

You have certainly indicated a major flaw in the Convention as it
stands, and I hope you continue to repeat it. But "troubling" is a mild
way to put. I can think of some much more graphic epithets.

And, once again, I don't see how the Convention can function as any form
of justice without some appeals process, where just such issues as the
ones you have pinpointed might be resolved by a more impartial, higher
court.

> Another troubling issue, highlighted by Mr Trooboff, is that the proposed
> Convention is referred to as a "business-to-business" convention, while in
> fact it is a convention covering all sorts of parties except consumers and
> employees.

As far as the drafters are concerned, there are no such things as
consumers. From their POV, all persons are automatically converted into
businesses by the act of entering into a contract for goods or services.
This is the corporatist mentality, in which the essential humanness of
the individual homo sapien is subverted to a corporate function.

> It could, of course, be said that the term B2B is used for
> convenience, but I think this simplification is unsuitable as it easily
> distorts the picture of what is actually under negotiation.

What is so discouraging is that by now it must be apparent to all that
the corporate lawyers who have been drafting this thing are purposely
using the elastic B2B designation in order to deceive, and that no one
in a position to confront them on it has done so. Since neither the
Hague directorate nor any of the more powerful negotiating missions are
willing to take on this issue, one can only hope that those who
eventually fall into the Convention's B2B trap will, in the absence of
an appeals court for international jurisdiction, be able to find some
international court with enough clout to revive the issue in their
particular case.

M. Sondow