Ahmed: The Nature and Enforcement of Choice of Court Agreements: A Comparative Study

Mukarrum Ahmed (Lancaster Univ. - Law) has published The Nature and Enforcement of Choice of Court Agreements: A Comparative Study (Hart Publishing 2017). Here's the abstract:

This book examines the fundamental juridical nature, classification and enforcement of choice of court agreements in international commercial litigation. It is the first full-length attempt to integrate the comparative and doctrinal analysis of choice of court agreements under the Brussels I Recast Regulation, the Hague Convention on Choice of Court Agreements ('Hague Convention') and the English common law jurisdictional regime into a theoretical framework. In this regard, the book analyses the impact of a multilateral and regulatory conception of private international law on the private law enforcement of choice of court agreements before the English courts. In the process, it both pre-empts and offers innovative solutions to issues that may arise under the jurisprudence of the emergent Brussels I Recast Regulation and the Hague Convention. The need to understand the nature and enforcement of choice of court agreements before the English courts from the perspective of the EU private international law regime and the Hague Convention cannot be understated. This important new study aims to fill an existing gap in the literature in relation to an account of choice of court agreements which explores and reconnects arguments drawn from international legal theory with legal practice. However, the scope of the work remains most relevant for cross-border commercial lawyers interested in crafting pragmatic solutions to the conflicts of jurisdictions.

Brand: Implementing the 2005 Hague Convention: The EU Magnet and the US Centrifuge

Ronald A. Brand (Univ. of Pittsburgh - Law) has posted Implementing the 2005 Hague Convention: The EU Magnet and the US Centrifuge (in Entre Bruselas Y La Haya, Estudios Sobre La Unificación Internacional Y Regional Del Derecho International Privado: Liber Amicorum Alegría Borrás, Joaquim Forner Delaygua, Cristina Gonzalez Beilfuss, & Ramon Vinas Farre eds., 2013). Here's the abstract:

Competence for the development of rules of private international law has become more-and-more centralized in the European Union, while remaining diffused in the United States. Nowhere has this divergence of process in private international law development been clearer than in the approach each has so far taken to the ratification and implementation of the 2005 Hague Convention on Choice of Court Agreements. In Europe, ratification has been preceded by the 2012 Recast of the Brussels I Regulation, coordinating internal and external developments, and reaffirming Union competence for future developments, both internally and externally. In the United States, debate has arisen over whether the Convention should be implemented in a single federal statute – as was done for the New York Convention in the Federal Arbitration Act – or through state-by-state enactment of a Uniform Act promulgated by the National Conference of Commissioners on Uniform State Laws. These differences in approach are important to future negotiations in multilateral fora such as The Hague Conference on Private International law, UNCITRAL, and UNIDROIT. They demonstrate a coherence of approach within the EU which attracts not only its own Member States, but also external constituencies in international negotiations, and diffuse development of the law in the United States, which tends to make leadership in multilateral negotiations difficult.

Burbank: Whose Regulatory Interests? Outsourcing the Treaty Function

Stephen B. Burbank (Univ. of Pennsylvania - Law) has posted Whose Regulatory Interests? Outsourcing the Treaty Function (New York University Journal of International Law and Politics, forthcoming). Here's the abstract:

In this article I describe the status quo in the area of foreign judgment recognition, with attention to the tension between domestic interests and international cooperation. Precisely because the future of the status quo is in doubt, I then consider current proposals for change, particularly the effort to implement the Hague Choice of Court Convention in the United States. Prominent among the normative questions raised by my account is whose interests, in addition to the litigants’ interests, are at stake – those of the United States, those of the several states, or those of interest groups waving a federal or state flag. A related question is whether, if the uniformity we seek is to be found in state rather than federal law, we can be, and be seen by other countries to be, serious about international cooperation. I describe in some detail the sequence of events that led to the Uniform Law Commissioners (“ULC”) becoming involved in the process of drafting legislation to implement the Choice of Court Convention. I also explore reasons why the ULC has been successful in securing the lion’s share of attention for its preferred approach to implementation, which the ULC calls “cooperative federalism,” but which has come to resemble cooperative redundancy. Recounting how, and offering suggestions why, the ULC ultimately rejected a package of compromises proposed by the State Department’s Legal Adviser, even though almost all compromises were in favor of the ULC, I conclude with observations about the ULC’s ambitions in the international arena. My argument is that, if the ULC were successful in taking over the negotiation or implementation of private international law treaties, international cooperation would be if not a fortuity, then not a priority, because we would have regressed to a position of privileging not just federal but state law uniformity over international uniformity. And the state law we privileged would be anything but “indigenous.”

Brand: Recognition Jurisdiction and the Hague Choice of Court Convention

Ronald A. Brand (Univ. of Pittsburgh - Law) has posted Recognition Jurisdiction and the Hague Choice of Court Convention (in Liber Amicorum Krešimir Sajko, Hrvoje Sikiric, Vilim, Boucek, & Davor Babic eds., forthcoming). Here's the abstract:

This chapter, written to honor Professor Krešimir Sajko of the University of Zagreb, considers the question of personal jurisdiction in U.S. courts at the stage of submission of a foreign judgment for recognition. Existing cases dealing with both recognition of foreign judgments and with the recognition of foreign arbitral awards under the New York Convention fail to provide a clear position on (1) whether either personal jurisdiction or quasi in rem jurisdiction through the presence of the judgment/award debtor’s assets is required, and (2) if quasi in rem jurisdiction is relied upon, just what allegation or proof of the presence of the judgment/award debtor’s assets within the jurisdiction is necessary. The analysis here ends with the conclusion that due process for purposes of recognition jurisdiction may be satisfied based on concepts of consent that are fundamental to the operation of both the New York Convention and the 2005 Hague Convention on Choice of Court Agreements. Such a result would place the United States in a position consistent with its future treaty partners under the Hague Convention on the matter of recognition jurisdiction.

Brand: Arbitration or Litigation? Choice of Forum After the 2005 Hague Convention on Choice of Court Agreements

Ronald A. Brand (Univ. of Pittsburgh - Law) has posted Arbitration or Litigation? Choice of Forum After the 2005 Hague Convention on Choice of Court Agreements. Here's the abstract:

The possibility of wide ratification of and accession to the 2005 Hague Convention on Choice of Court Agreements presents important issues for those drafting international commercial contracts. Transactions lawyers have rather easily justified the inclusion of arbitration agreements in international commercial contracts because the New York Arbitration Convention insures both compliance with the agreement to arbitrate and the recognition and enforcement of any resulting arbitral award. When the Hague Convention becomes effective in a significant number of states, choice of court clauses will be more easily enforced, and court judgments will more easily recognized in other states. Thus, the choice between arbitration and litigation will hinge on the real differences between these two dispute settlement options, and not merely on the fact that one is more easily enforced than the other. This article compares the choices for both private parties and states under the Hague Convention with those existing under the New York Arbitration Convention.

United States Signs Hague Choice of Court Convention

On Monday, the United States signed the 2005 Hague Convention on Choice of Court Agreements. John B. Bellinger did the honors in one of his final acts as Legal Adviser to the Secretary of State. The United States is the only country that has signed the Convention. Mexico is the only party to the Convention, having acceded to it in September 2007. Thanks to Conflict of Laws .net for noting this.

This was a fitting way to end Bellinger's distinguished term as Legal Adviser.

Mexico Accedes to Hague Choice of Courts Convention

On September 26, Mexico deposited its instrument of accession to the Hague Convention of 30 June 2005 on Choice of Court Agreements, thereby becoming the Convention's first Contracting State. In accordance with its Article 31(1), the Convention will "enter into force on the first day of the month following the expiration of three months after the deposit of the second instrument of ratification, acceptance, approval or accession." (Acknowledgement: Conflict of Laws .Net.)