IBA Annual Litigation Forum: The Hague Conference on Private International Law

Florian Horn
fhorn, Vienna
office@fhorn.at

IBA Annual Litigation Forum, Amsterdam, April 2024: The Hague Conference on Private International Law – an update on current projects, priorities and the latest developments regarding the Choice of Court Convention 2005 and Judgments Convention 2019

The IBA Annual Litigation Forum 2024 started on 18 April with the first session concerning the Choice of Court Convention 2005 and Judgments Convention 2019, two recent conventions of the Hague Conference on Private International Law (HCCH). Sara Chisholm-Batten (Michelmores, London) and Dr Urs Hoffmann-Nowotny (Schellenberg Wittmer, Zürich) moderated the distinguished panel consisting of Dr Christophe Bernasconi (Secretary General of the HCCH, The Hague), Blossom Hing (Drew & Napier, Singapore), Thomas Plewman KC (Brick Court Chambers, London) and Dr Norel Rosner (European Commission, Brussels).

Bernasconi, Secretary General since 1 July 2013, provided the audience with a concise overview of the legislative project leading to the two Hague conventions discussed. He pointed out that in 1992, an earlier attempt to gather support for the so-called ‘Jurisdiction Project’ under the HCCH had been unsuccessful. This endeavour had tried to establish a comprehensive instrument which would govern international jurisdiction, recognition and enforcement of judgments.

After it became clear that this first attempt could not achieve the consensus needed, internal analysis by the HCCH identified the fields of choice of court agreements and enforcement of judgments as potential areas of agreement. Concentrating on these fields only, the strategy proved successful with the creation of the Choice of Court Convention 2005 (HCCC) and the Judgments Convention 2019 (HJC). Both conventions have come into force and Bernasconi considers them as living conventions used in practice.

The HCCC has gained the support of 34 contracting parties. It is in force in all European Union member states, Montenegro, Singapore, Ukraine and the United Kingdom, with the Republic of Moldova joining in June 2024. The HJC has so far gained the support of 29 contracting parties. It is currently in force in all EU Member States except Denmark and Ukraine, and Uruguay joins in October 2024. Bernasconi pointed out that while the United States has signed both conventions, they have not been ratified and he has reason to believe that this step is being actively pursued. 

Bernasconi emphasised that the Jurisdiction Project continues. Recent considerations include the potential revision of the Service Convention 1965, the Evidence Convention 1970 and an exploration of the concept of related claims to avoid jurisdictional conflicts. He sees the IBA as a key voice in transnational litigation and he extended a heartfelt invitation to the IBA to share its observations on practical issues regarding the topics currently under consideration at the HCCH. He also pointed legal practitioners to the practical handbooks of the HCCH, where new editions are in preparation.

Rosner complemented this overview with observations from the perspective of the EU as one of the participants in this process and confirmed the important role of the IBA providing useful input as an observer to the HCCH. He reminded the audience of the even earlier Convention on Recognition and Enforcement 1971, which never obtained widespread acceptance, and the similarity of the 1992 approach in the HCCH with the Brussels Convention. He emphasised the EU’s role in the quick adoption of the HCCC and the HJC, which was achieved by way of a single step accession procedure. He pointed out the advantage of those conventions, which in the context of the European regulatory system also enables free circulation of third state judgments within the EU, that is, of judgments based on exclusive jurisdiction clauses under the HCCC and other matters including judgments based on non-exclusive jurisdiction clauses under the HJC. This is strengthened by the recent judgment of the Court of Justice of the European Union1 which found that parties to a contract who are established in the same Member State can agree on the jurisdiction of the courts in another Member State to settle their disputes, even if that contract has no other connection with that other Member State. 

Rosner could see the advantage in more states ratifying the HCCC and the HJC. However, some issues remain open, for example the exclusion of intellectual property litigation from the HJC and an only implicit lis pendens rule. He hoped that any legislative gaps can be bridged in the future in the interest of the good administration of justice and to prevent conflicting judgments.

Hing added her perspective, being active in litigation and arbitration in her firm in Singapore. Singapore has so far only adopted the HCCC and transposed it into national law by the Singaporean Choice of Court Agreement Act (CCAA). The HCCC has already had an important impact on international litigation in Singapore. Key decisions so far have shed light on the questions: (1) whether to stay or dismiss a claim in the event of parallel proceedings, where the Singapore court was first seized, but it was not the designated court under the jurisdiction clause;2 and (2) on the enforcement of an English judgment, where the Singapore court allowed enforcement even though not all the formal criteria to provide a complete and certified copy of the judgment had been met3. In general, courts in Singapore have sought guidance from the Hartley/Dogauchi Explanatory Report on the HCCC.

Hing also highlighted the practical advantages of the Singapore International Commercial Court (SICC) with a view to the easier enforcement within the HCCC regime. She described the procedure as similar to arbitration but within a court setting. Advantages include that foreign law can be established by way of submission and the board of judges would usually include a lawyer trained in the specific chosen law. Additionally, the registration of foreign lawyers to appear before the SICC is relatively easy.

Given his wide experience in commercial dispute cases, Plewman was able to give a view on the UK perspective. He pointed to the Private International Law (Implementation of Agreements) Act 2020, legislation necessary to, in effect, reimplement the HCCC following Brexit. The UK had previously participated in the HCC since 1 October 2005 by virtue of its membership of the EU. On this point, different positions were noted. Bernasconi took the view that the UK’s membership was continuous, as reported by the HCCH in its status table. Rosner referred to a communication of the European Commission, which considers that the UK has only recently acceded without such continuation. This question is likely to have a significant impact on the enforcement of decisions between the UK and the EU in the relevant overlapping time periods. In the Netherlands, there are currently a number of first instance decisions, which have determined the question in both directions. The question from an EU perspective will likely only be solved in either direction by forthcoming jurisprudence of the higher courts.

Plewman also reported on the case of Etihad Airways PJSC v Flother,4 in which the Court of Appeal referred to the HCCC in the interpretation of an asymmetric jurisdiction clause under the Recast Brussels Regulation.5 That court held that an asymmetric jurisdiction clause is an exclusive jurisdiction clause for the purposes of Brussels I (recast). The Court of Appeal did not need to decide whether the asymmetric clause would fall within the HCCC, however they did give strong indications that they would be excluded. This in line with continental European jurisprudence to date, which has seen this issue as acte clair.

In conclusion, the presentation gave an excellent overview of the two important conventions pertaining to jurisdiction and enforcement within the HCCH framework with a strong outlook on future potential developments.

Notes

1 Case C-566/22); EU:C:2024:123, ECJ

2 6DM (S) Pte Ltd v AE Brands Korea Ltd and others [2022] 3 SLR 1300

3 Ermgassen & Co Ltd v Sixcap Financials Pte Ltd [2018] SGHR 8

4 [2020] EWCA Civ 1707

5 Regulation (EU) No 1215/2012