[Hague-jur-commercial-law] New drafts for Hague Convention on Choice of Forum Clause
Manon Ress
manon.ress@cptech.org
Tue, 26 Apr 2005 16:22:25 -0400
Please find at the end of this message the new draft texts (7 pages)
that were produced by the Drafting Committee in The Hague last week.
These texts will be considered at the Diplomatic Conference June 14-28,
2005. They are subjects to discussions and you can still comment.
The new Article 20 would replace the Asbestos provision (that only
Canada liked) with a general provision on excluded matters:
Article 20 – Declarations with respect to specific matters
(1) A State may declare that it will not apply the Convention to a
specific matter other than those referred to in Article 2, paragraph 2
[which falls within the exclusive jurisdiction of the courts of that State].
(2) With regard to that matter, the Convention shall not apply in other
Contracting States where an exclusive choice of court agreement
designates a court of the State that made the declaration.
(3) The declaration may be made upon signature, ratification,
acceptance, approval or accession or at any time thereafter, and may be
modified or withdrawn at any time.
(4) The declaration shall be notified to the Depositary.
(5) A declaration made at the time of signature, ratification,
acceptance, approval or accession shall take effect simultaneously with
the entry into force of this Convention for the State concerned.
(6) A declaration made at a subsequent time, and any modification or
withdrawal of a declaration, shall take effect on the first day of the
month following the expiration of three months after the date on which
the notification is received by the Depositary. Such a declaration
shall not apply to exclusive choice of court agreements concluded before
it takes effect.1
END
The new drafts on IP and articles dealing with incidental questions:
Article 2(2)(k) – replace with the following paragraphs:
(k) validity of intellectual property rights other than copyright or
related rights;
[(kbis) infringement of intellectual property rights other than
copyright or related rights, [except where infringement proceedings are
or could have been brought pursuant to a contract for the transfer or
use of such rights];] or
Art. 2(3) – replace with the following text:
Notwithstanding paragraph 2, proceedings are not excluded from the scope
of the Convention where a matter excluded under that paragraph arises
merely as an incidental question and not as an object of the proceedings.
In particular, proceedings are not excluded from the scope of the
Convention merely because a matter excluded under paragraph 2 arises by
way of defence.
Article 6 Suspension of proceedings in connection with incidental question
This Convention neither requires nor precludes the suspension of
proceedings before the chosen court for such reasonable time as is
necessary to allow another court to decide a matter excluded under
Article 2, paragraph 2 which arises as an incidental question, in
particular to allow the courts of the State under the law of which an
intellectual property right arose to give a judgment on its validity.
Article 10 Incidental questions
1. Where a matter excluded under Article 2, paragraph 2, arose as an
incidental question, the ruling on that question shall not be recognised
and enforced under this Convention.
END
Also check below articles 9 and 11 on conflicting judgments, Article 15
on punitive damages, and article 23, dealing with the very difficult
issue of disconnection.
These new drafts will be topics for the May 9 Advisory Committee meeting
in DC.
Let me know what you think of the changes.
Manon
******************************************
Drafting Committee meeting April 2005 – text at end of day 3
Article 20 – Declarations with respect to specific matters
(1) A State may declare that it will not apply the Convention to a
specific matter other than those referred to in Article 2, paragraph 2
[which falls within the exclusive jurisdiction of the courts of that State].
(2) With regard to that matter, the Convention shall not apply in other
Contracting States where an exclusive choice of court agreement
designates a court of the State that made the declaration.
(3) The declaration may be made upon signature, ratification,
acceptance, approval or accession or at any time thereafter, and may be
modified or withdrawn at any time.
(4) The declaration shall be notified to the Depositary.
(5) A declaration made at the time of signature, ratification,
acceptance, approval or accession shall take effect simultaneously with
the entry into force of this Convention for the State concerned.
(6) A declaration made at a subsequent time, and any modification or
withdrawal of a declaration, shall take effect on the first day of the
month following the expiration of three months after the date on which
the notification is received by the Depositary. Such a declaration
shall not apply to exclusive choice of court agreements concluded before
it takes effect.1
Article 15 Damages
1. A part of a judgment which awards non-compensatory damages, including
exemplary or punitive damages, shall be recognised and enforced if, and
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.
If para 2 of Art 15 is deleted, Article 15 could be redrafted as follows:2
1. A part of a judgment which awards non-compensatory damages, including
exemplary or punitive damages, shall be recognised and enforced if, and
to the extent that, a court in the requested State could have awarded
similar or comparable damages.
2. The court addressed shall take into account whether and to what
extent the damages awarded by the court of origin serve to cover costs
and expenses relating to the proceedings.
3. Nothing in this Article 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.
IP-RELATED DRAFTING ISSUES
Article 2(2)(k) – replace with the following paragraphs:
(k) validity of intellectual property rights other than copyright or
related rights;
[(kbis) infringement of intellectual property rights other than
copyright or related rights, [except where infringement proceedings are
or could have been brought pursuant to a contract for the transfer or
use of such rights];] or
Art. 2(3) – replace with the following text:
Notwithstanding paragraph 2, proceedings are not excluded from the scope
of the Convention where a matter excluded under that paragraph arises
merely as an incidental question and not as an object of the proceedings.
In particular, proceedings are not excluded from the scope of the
Convention merely because a matter excluded under paragraph 2 arises by
way of defence.
Article 6 Suspension of proceedings in connection with incidental question
This Convention neither requires nor precludes the suspension of
proceedings before the chosen court for such reasonable time as is
necessary to allow another court to decide a matter excluded under
Article 2, paragraph 2 which arises as an incidental question, in
particular to allow the courts of the State under the law of which an
intellectual property right arose to give a judgment on its validity.
Article 10 Incidental questions
1. Where a matter excluded under Article 2, paragraph 2, arose as an
incidental question, the ruling on that question shall not be recognised
and enforced under this Convention.
Inconsistent judgments
Replace Article 9(1)(f) with the following:
(f) the judgment is inconsistent with a judgment given in a dispute
between the same parties in the requested State; or
(g) the judgment is inconsistent with an earlier judgment between the
same parties and involving the same cause of action, provided that the
earlier judgment fulfils the conditions necessary for its recognition in
the requested State[ under an international agreement], and provided that:
(i) in the case of a judgment given in a Contracting State, it was not
given in contravention of this Convention;
(ii) in the case of a judgment given in a non-Contracting State, [it
would not have been given in contravention of this Convention if the
State of origin had been a Contracting State].
Article 11 Judgments in contravention of exclusive choice of court
agreements
[Where the parties are bound by an exclusive choice of court agreement,
the courts of a Contracting State shall not recognise or enforce a
judgment from a non-Contracting State if the judgment would have been in
contravention of the Convention if the State of origin had been a
Contracting State.]3
Article 23 Relationship with other international instruments
1. Except as provided in paragraphs 2 and 4, this Convention shall not
affect any international instrument in force in a Contracting State,
whether concluded before or after this Convention, unless a contrary
declaration is made by the Contracting States bound by such instrument.
2. This Convention shall prevail over any international instrument
applicable in a Contracting State, whether concluded before or after
this Convention, if the chosen court is situated, or a party is
resident, in a Contracting State in which the instrument is not applicable.
[3. Notwithstanding paragraph 2, a Contracting State shall not be
required to apply this Convention to the extent that to do so would be
incompatible with obligations to a non-Contracting State under a treaty
concluded prior to the adoption of the text of this Convention, [and in
respect of which the Contracting State has made a declaration under this
paragraph].]
4. Notwithstanding paragraph 2, this Convention shall not restrict the
application of an international instrument in force in a Contracting
State, whether concluded before or after this Convention, for the
purposes of obtaining recognition or enforcement of a judgment given by
a court of a Contracting State designated in an exclusive choice of
court agreement. [However the judgment shall not be recognised or
enforced to a lesser extent than under this Convention.]
5. [Notwithstanding paragraphs 2 and 4, this Convention does not affect
the ability of one or more Contracting States to apply or to enter into
international instruments which, in relation to specific subject
matters, govern jurisdiction or the recognition or enforcement of
judgments, even if all States concerned are parties to this Convention.]4
6. For the purposes of this Article, “international instrument” means an
international treaty or rules made by an international organisation
under an international treaty.
Alternative version of para 3:
[3. Notwithstanding paragraph 2, a Contracting State shall not be
required to apply this Convention to the extent that to do so would be
incompatible with obligations to a non-Contracting State under a treaty
which entered into force for that Contracting State prior to the date on
which this Convention entered into force for that Contracting State,
[and in respect of which the Contracting State has made a declaration
under this paragraph].]
Article 16A Transitional provisions
1. This Convention shall apply to exclusive choice of court agreements
concluded after its entry into force in the State of the chosen court.
2. This Convention shall not apply to proceedings instituted before the
Convention entered into force in the State of the court seised.
Article 18 Limitation of jurisdiction
Upon ratification, acceptance, approval or accession, a State may
declare that its courts may refuse to determine disputes to which an
exclusive choice of court agreement applies if, except for the location
of the chosen court, there is no connection between that State and the
parties or the dispute [either at the time the agreement is concluded or
at the time of commencement of the proceedings].
Article 19 Limitation of recognition and enforcement
Upon ratification, acceptance, approval or accession, a State may
declare that its courts may refuse to recognise or enforce a judgment of
a court in another Contracting State if, at the time the agreement is
concluded, the parties are resident in the requested State and the
relationship of the parties and all other elements relevant to the
dispute, other than the location of the chosen court, are connected only
with the requested State.
Parties
Article 7 Obligations of a court not chosen
A court in a Contracting State other than that of the chosen court shall
suspend or dismiss proceedings to which an exclusive choice of court
agreement applies unless –
.....
END of Document
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Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org
Consumer Project on Technology in Washington, DC PO Box 19367,
Washington, DC 20036, USA Tel.: +1.202.387.8030, fax: +1.202.234.5176
Consumer Project on Technology in Geneva, 1 Route des Morillons, CP
2100, 1211 Geneva 2, Switzerland. Tel: +41 22 791 6727
Consumer Project on Technology in London, 24 Highbury Crescent, London,
N5 1RX, UK. Tel:+44(0)207 226 6663 ex 252. Mob:+44(0)790 386 4642. Fax:
+44(0)207 354 0607