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

[Manon Ress]

Dear Dan,
Thanks for your message.  One question for you:  for many "Hague 
watchers" resistance to more flexibility in the substantive validity 
provisions is coming from European civil servants....what can be done?

Svantesson wrote:

>Dear friends,
>
>I have read Peter Trooboff's well-written and informative article, which
>Manon kindly posted to the list. The article highlights a few problems with
>the proposed Convention.
>
>In the context of the provisions that provide a state with the right to
>refuse enforcement, Mr Trooboff stated that: "These provisions are designed
>to maintain internationally the delicate balance of respect for agreements
>and commercial stability with protection for weaker parties". This is
>certainly true, and the protection so provided should not be underestimated.
>The typical contractual party deserving extra protection would ordinarily
>only have assets in one state and if enforcement cannot be effected there,
>due to these provisions, the weaker party is rather well protected. However,
>there are at least two serious downsides with this approach. First, it would
>seem that in many, not to say most, weak party-strong party relations it is
>the weaker party that is trying to get a judgment against the stronger
>party. In such situations the structure of the suggested Convention provides
>little comfort. Secondly, the chosen structure is extraordinarily wasteful
>when it comes to the costs associated with international litigation. By the
>time, in the process, a party can rely on non-enforcement, it is possible
>that both the parties to the dispute, as well as the society at large, has
>spent considerable amounts of money on the litigation.
>
>I acknowledge that I probably have starting to sound like a broken record by
>now, but surely it would be better to include a balancing provision already
>at the stage of the initial trial (i.e. to not uphold the forum selection
>clause if it is unfair)? As I have suggested before, 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." This would admittedly lower
>the predictability of the Convention, but predictability must always be
>balanced with flexibility (i.e. justice in the individual case). As pointed
>out by Mr Trooboff, a will to strive towards such a balance exists in the
>US, it certainly exists in Europe and to my knowledge it is a common
>component in most legal systems.
>
>If many domestic systems already have in place mechanism to deal with this
>balance, one could perhaps question the need for such a balancing to be
>included in the proposed Convention. However, 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. In other words, a stronger party nominating
>a forum would not choose a forum that would hold their choice to be invalid.
>Consequently, the fact that the validity of the choice is judged by the
>chosen forum is troubling.
>
>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. 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.
>
>
>Best regards,
>
>Dan Svantesson.
>
>Dan Svantesson
>PhD Research student
>Faculty of law
>University of New South Wales
>Syndey, NSW 2052
>Australia
>
>
>-----Original Message-----
>From: hague-jur-commercial-law-admin@venice.essential.org
>[mailto:hague-jur-commercial-law-admin@venice.essential.org] On Behalf Of
>Manon Ress
>Sent: Friday, 30 January 2004 6:25 AM
>To: haguelist
>Subject: [Hague-jur-commercial-law] Peter Trooboff Article on The Hague
>project
>
>Peter D. Trooboff, Covington & Burling (a member of the US Delegation for
>The Hague project) has just published a short article on the proposed Hague
>Convention in NLJ.  Comments are welcome.
>
>http://www.cptech.org/ecom/jurisdiction/trooboff2004.pdf
>
>--
>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
>
>
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>
>  
>


-- 
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