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

[Michael Sondow]

Manon (et al):

Thanks very much for the good research on this question.

Art. 2(5) Para 58 of Draft report December 26, 2004, seems to clearly include gov-to-bus contracts within the scope of the Hague Convention. It occurs to me that there must have been some heated debate on this question on the level of member governments, but I?ve seen none. Is it possible that it has somehow been overlooked? 

Michael Sondow

Manon Ress wrote:

>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>