[Hague-jur-commercial-law] Question on contracts between gov. and private business

[Manon Ress]

Dear colleagues,

Trying to respond to the following question:

"A question re the extent of the Hague Convention as it now stands:

Does it cover contracts between the government of a country and a 
private business of another country?  Here in Argentina and other South 
American countries with big debt problems, there is increasing rebellion 
against the judgments of foreign courts in lawsuits where multinational 
corporations (especially the beneficiaries in the privatizations of 
public services like water and energy) are suing the governments over 
contracts written before monetary devaluation took place. I´m quite 
interested to know what effects the Hague Convention will have on these 
cases, particularly vis-a-vis Argentina, which is about to refuse to 
accept the courts´ judgments on grounds of unconstitutionality (the 
Argentine Constitution). (See 
http://www.clarin.com/diario/2005/03/22/opinion/o-943073.htm)"

I found in Para 58 of Draft report December 26, 2004:

"Article 2(5) provides that proceedings are not excluded from the scope 
of convention by mere fact that a government, a governmental agency or 
any person acting for a State is a party thereto.  The proceedings will 
however, be excluded if they do not concern a civil or commercial 
matter.  As a general rule of thumb, one can say that if a public 
authority is doing something that an ordinary citizen coul do, the case 
probably involves a civil or commercial matters."

See footnotes 57 and 58.

See Article 2(5) page 2 of 14 of Work. Doc No 110E
Also check the Nygh/Pocar Report Prel doc 11 of August 2000 at pp. 35-36 
available at <www.hcch.net>

Feel free to correct me if this is wrong.
Manon


-- 
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

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