HEARING ON THE DRAFT CONVENTION OF THE CONFERENCE OF THE HAGUE... JURISDICTION AND FOREIGN JUDGMENTS IN CIVIL AND COMMERCIAL

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HEARING
ON THE DRAFT CONVENTION OF THE CONFERENCE OF THE HAGUE ON
JURISDICTION AND FOREIGN JUDGMENTS IN CIVIL AND COMMERCIAL
MATTERS
PROVISIONAL DATE: 24 OCTOBER 2001
The Hague Conference on Private International Law <http://www.hcch.net/e/index.html> is
currently working on a draft convention on jurisdiction and enforcement of judgments in civil
and commercial matters between States Parties. This would operate for the benefit of both
private individuals and bodies corporate. For example, where a European company obtains
judgment in a court of a Member State for non-performance of a contract by a foreign partner, it
will be able, under the future Convention, to seize the loser’s assets in any non-member country
which is a party to the Convention without having to either bring a fresh action or simply give up
because a second action would be too costly.
The initial objective of the project is to increase legal foreseeability and the reliability of
judgments at international level for the benefit of all economic operators and private individuals.
The means of doing so consist of suggesting simple and effective solutions that are easily
applicable by judges and lawyers and to strike a balance between the interests of claimants and
defendants.
In Europe, such instruments already exist. Jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters are regulated by the Brussels Convention of 27
September 1968, which binds all the Community Member States. Its system was extended to the
EFTA Member States and then to Poland by the Lugano Convention of 16 September 1988,
which contains almost the same provisions. The Brussels Convention will be replaced by
Council Regulation (EC) No 44/2001 </eur-lex/en/lif/dat/2001/en_301R0044.html> ("Brussels
1"), covering the same field and entering into force on 1 March 2002. As the draft world
convention has the same object as the European instruments, this work is both legally and
economically important for the Community.
The Hague Conference draft is a double Convention, like the Brussels Convention of 27
September 1968 - it regulates both the direct jurisdiction of the courts in the matters that it covers
and the recognition and enforcement of foreign judgments - as opposed to a simple Convention
dealing only with the second aspect.
With regard to the structure of the Convention, the work of the Hague Conference in 1999 was
directed towards the development of a « mix » and therefore more flexible Convention
containing:

a list of acceptable grounds of jurisdiction (white list), some of which would be
exclusive, i.e. grounds of jurisdiction on the basis of which the referral to the court of
origin implies recognition and enforcement of a judgment given in another Contracting
State in accordance with the Convention (Articles 3 to 13 of the draft);

a list of grounds of jurisdiction which would be available under the various national laws
(“grey areas”) without judgments given on this basis, however, being recognised under
the Convention though they might be on the basis of the Contracting States’ general law
of recognition (Article 17);

subject, however, to a list of prohibited grounds of jurisdiction or exorbitant fora, lacking
a sufficient connection with the dispute, with a list of non-restrictive examples (black list)
on which the jurisdiction of the courts in a contracting State cannot be based in any
circumstances; the recognition of judgments given on the basis of such fora is prohibited
(Article 18 of the project);
A
preliminary
draft
Convention
<http://www.hcch.net/e/conventions/draft36e.html?view=View+this+page+in+English>
was
adopted by a Special Commission of the Hague Conference on 30 October 1999. For a detailed
description of this project, see the Report by Mr Peter NYGH and Mr POCAR
<rapport_nygh_pocar.pdf>.
A
Diplomatic
Conference
of
the
Hague
Conference
<http://www.hcch.net/e/workprog/jdgm.html> took place from 6 to 22 June 2001 on the basis of
the consensus to examine this preliminary draft and the results of several informal preliminary
meetings of experts devoted mainly to aspects related to electronic commerce and intellectual
property.
The result of these discussions was a new text prepared by the Permanent Bureau of the Hague
Conference, which contains numerous options and alternatives.
The General Affairs and Policy Commission of the Hague Conference, which met after work on
the draft on jurisdiction and foreign judgments, decided to defer to January 2002 the decision
concerning continuation of the negotiations. The Resolution passed on 23 June 2001 stipulates
that consultations will must be undertaken between now and then to determine the preconditions
for the conclusion of the negotiations, relating both to the substance of the Convention and to the
method and possible timetable for the future negotiations.
It is in this context that the Commission has decided to organise in Brussels a hearing covering
the latest status of last state of the draft Convention of the Hague Conference of private
international law on jurisdiction and foreign judgments in civil and commercial matters.
In preparation for this hearing, we suggest you look at the attached detailed questionnaire
concerning the latest text resulting from the first diplomatic session at The Hague in June 2001.
We would be very glad to receive your written answers (please feel free to answer only to the
questions that interest you) before the hearing (by e-mail: [email protected]
<mailto:[email protected]>or by fax: 32/2/299.64.57).
The hearing will be devoted to an open discussion on the most important questions:
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QUESTIONNAIRE
ON THE PREPARATION OF THE HEARING
ON THE DRAFT CONVENTION OF THE HAGUE CONFERENCE ON
JURISDICTION AND FOREIGN JUDGMENTS IN CIVIL AND COMMERCIAL
MATTERS
NB: This questionnaire refers to the latest version which is the outcome of the first diplomatic
session in the Hague in June 2001 <resume_juin_2001.pdf>.
1 General matters
Does the draft Convention of the Hague Conference appear to you to be valuable for
Community nationals and firms today? More generally, does this kind of draft,
which would make it possible to organise the free movement of judgments in civil
and commercial matters between the Community Member States and certain third
countries, meet a need? Explain.
If so, on what conditions does such a project seem to you viable and acceptable for
the Community and its Member States? What advantages would you expect from
such a Convention? What disadvantages would you under no circumstances
expect?
Does the nature of the current (mix) draft convention appear you to correspond to the
needs that legal practitioners and economic operators feel within the framework
of their activities? Explain.
For that purpose, what terms of reference should at least appear in the list of grounds
of jurisdiction admitted by the Convention ("white list")?
What do you think of the existence of a "grey area" of grounds of jurisdiction of
national law in the Convention, and how do you perceive this characteristic in
relation to the European system of the Brussels Convention of 1968 and of
Regulation 44/2001, known as the "Brussels I" Regulation (perceived advantages
and disadvantages)?
Would a simple Convention, covering only recognition and enforcement of
judgments, without laying down rules of jurisdiction directly applicable by the
court of origin as in the current draft, strike you as worthy of interest?
Does the presence in the Convention of a "black list" containing prohibited grounds
of jurisdiction seem essential to you or not? If so, what grounds do you believe
should be on the list?
Would you accept that "doing business" (Article 18-2, e) could be abolished as a
ground of jurisdiction in the current list? Explain.
Several relatively similar provisions aim to protect the suppliers using electronic
means who take specific precautions regarding subjection to the jurisdiction of
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certain courts (Article 6, alternative 2, paragraph 3; Article 7-3; Article 10-3). Do
you think that these provisions are likely to fill the avowed objective, and if not,
what would you propose instead?
2. Substantive scope (Article 1 )
2.1 Do all the exclusions allowed by Article 1 seem to you to be justified and
clear? If not, which ones should not be found on the list of exclusions, and
conversely, are there certain fields you believe should also be excluded from the
field of the Convention? Explain.
2.2 There was no consensus or agreement on the scope of the exclusions in square
brackets in Article 1 (antitrust or competition claims, nuclear liability, property
rights in rem, validity, nullity and dissolution of legal persons). Which of these
exclusions do you think are justified, and which not? Explain.
2.3 measures from the scope of this Convention? If so, do you consider it
desirable to include jurisdiction to order interim payments in the list of prohibited
grounds of jurisdiction?
3. General rule of jurisdiction (Article 3)
With regard to the location of natural persons, since the last meeting, an alternative to
the traditional criterion of the defendant’s habitual residence (Article 3-1) is
proposed (Article 3-2), though there is no consensus on it (cf. note 17). Which
alternative appears the more suitable to you? Explain.
Does Article 3-3, relating to the linking factors for legal persons, seem suitable to you
to business practice? If not, explain.
4 Choice of court (Article 4)
Does it seem important to you that there should be a provision in the draft concerning
the parties’ choices of one or of more courts to settle disputes between them?
Give any information you can on the frequency of use of this type of clause in the
business world. If so, does the proposed text correspond to needs inherent in
business practice?
Do you encounter difficulties in having judgments given on the basis of choice-ofcourt clauses enforced?
Does a proposal to restrict the choice of the contracting parties to the designation of
the courts of a contracting state only seem realistic to you (cf. note 19)?
5. Contracts and forum of the activity (Article 6)
Of the two alternatives proposed in Article 6 - that based on the activity (A) or that
based on the place of execution (B) - which is the more acceptable to you (see
footnotes 33 and 42)?
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Can the two alternatives be combined?
With regard to alternative A (forum based on activity), indicate whether you have an
opinion as the drafting options in square brackets (footnotes 35, 36 and 37).
With regard to Article 6, alternative A, paragraph 2, indicate which alternative, if any,
appears the most suitable to you. Explain.
6. Contracts concluded by consumers
Generally speaking, does a provision of this nature, which confers jurisdiction on the
courts of the consumer’s usual residence in the event of a dispute with a
professional, seem useful to you in the draft convention?
If so, should such a provision be confined to contracts concluded by natural persons
acting as consumers for personal or family needs or extended to transactions by
legal persons or professionals for needs not directly connected with their
activities?
Should this rule be confined to contractual actions or extended to other, e.g. actions
on torts and delicts ?
Should a professional be able to bring an action on a consumer contract against the
consumer only before the courts for the consumer’s place of residence?
Do choice-of-court clauses usually appear in international consumer contracts to
which you are parties, in particular contracts concluded on-line? If so, which
courts tend to be designated? Are they used regularly?
The text resulting from the meeting of June 2001 contains 3 alternatives A, B and C,
for paragraphs 5 and 6 of Article 7. Do you have any preference for one or the
other of them, or even a combination of some of them?
In contrast with Regulation 44/2001 (« Brussels I »), the draft of the Convention does
not include special rules on insurance. Do you think that it should include such
rules? If yes, what should be the criteria for attributing jurisdiction in the case of
disputes in matters relating to insurance (domicile of the insurer, of the insured,
place of the damaged property or of the harmful event…)? Should these rules
cover all types of insurance or only certain types (large risks or consumer…)?
What is your experience in this area?
7. Rule concerning individual contracts of employment
Do the proposals in the annex II (proposals 1 et 2) seem acceptable to you?
Do you think that it is useful in a draft of this nature to have a ground of jurisdiction
that specifically protects workers? Explain.
Are choice-of-court clauses commonly included in international employment
contracts? If so, which courts do they designate? Are they applied in practice?
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8. Branches
Article 9(1), apart from the text contained in square brackets, is comparable to Article
5-5 of the Brussels Regulation 44/2001 does it seem acceptable to you in the
context of the draft of the Hague Conference?
Should a provision of this nature include a court in the place "in which the defendant
has carried on regular commercial activity by other means"?
What do you think of the new paragraph 2 in square brackets?
More generally, how do you think subsidiaries should be treated by the draft
Convention (cf.. also Article 18-2, k)?
9. Torts or delicts
Is a general ground of jurisdiction for torts or delicts acceptable in this draft? What do
you think of the text proposed for paragraphs 1 (a) and (b)? Are there fields in
which the current text of Article 10 of the draft would be likely to raise
implementation difficulties? Explain.
2 Should there be a ground of activity-based jurisdiction as regards torts and
delicts in the draft convention?
Do you think that paragraph 4 should be deleted?
Should paragraph 5 be removed in its entirety, or only the last part of this paragraph
("... unless the injured person has his or her usual residence in that State")?
10. Trusts
Article 11(3) specifies that this provision applies only to disputes within the trust, i.e.
to disputes between trustee, settlor and beneficiaries. It means therefore that
disputes between the parties to the trust and third parties are governed by the
draft’s other provisions on jurisprudence. Should this provision, which simply
takes over the terms of the report but appears in square brackets, be maintained?
11. Exclusive jurisdiction
Should the Convention contain a list of exclusive grounds of jurisdiction, i.e. grounds
applying regardless of the parties’ habitual residence and allowing no prorogation of
forum or exercise of lis pendens or of "forum non conveniens"? Does the limited list of
exclusive grounds in Article 12 seem suitable and useful to you?
2 As regards property rights in rem or tenancies of immovable property
Should the court for the place where the property is situated have exclusive
jurisdiction in the Convention for disputes covering property rights in
rem? Tenancies of immovable property? Certain tenancies? If so, which?
11.3 Intellectual property
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Patent and trademark rights
11.3.1 - The scope of application of the Convention includes intellectual property,
subject to a safeguard under the exclusive jurisdiction rules of Article 12. Do you
consider this safeguard to be sufficient in principle, or should the Convention also
include rules that would maintain the application of the rules on jurisdiction in
either existing or future Community instruments concerning intellectual property?
For example, should the special jurisdiction rules included in Regulation 40/94 on
the Community trademark continue to apply as they are notwithstanding the
jurisdiction rules of the Convention which could lead to a different result? The
same question arises with respect to future instruments on the Community patent
and on Community designs and models. Article 12(3) contains two alternatives, A
and B. The main question to be solved is whether infringement actions should be
within the exclusive jurisdiction. Which of these two alternatives seems the most
suitable one to you for the Convention? Do you consider that proceedings for
infringement of intellectual property rights should or should not benefit from
exclusive jurisdiction in the same way as proceedings for validity or revocation?
Could you explain why ? Explain.
- The text of Article 12, paragraph 4 covers patents and trademarks. Should other
intellectual property rights based on registration (for instance, designs and
models) be treated the same way?
- How should unregistered intellectual property rights be treated in the
Convention (for instance, unregistered trademarks or designs)? Should they also
benefit from exclusive jurisdiction rules?
11.3.2 Should there be non-exclusive jurisdiction when a question that is
otherwise covered by paragraphs 4 and 5 of Article 12 is raised on an incidental
basis in proceedings not primarily concerning the questions dealt with in those
paragraphs?
Copyright and neighbouring rights
Paragraph 7 concerns copyright and neighbouring rights. Which of the two
alternatives in square brackets is the more acceptable to you? More
generally, how should the Convention deal with these rights?
- Should copyright and neighbouring rights be excluded in whole or in part
from the Convention? If so, why?
- If these judgements should be included, do you think that specific
safeguards should be provided?
- Does exclusive jurisdiction (for the courts of the country where an act of
exploitation takes place) fit for copyright and neighbouring rights
litigation?
- Do you have any other suggestions for safeguards?
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If these matters are maintained within the Convention, would an additional
ground for refusal of recognition or enforcement of judgements in
copyright and neighbouring rights matters, such as would be an
appropriate mean to address possible concerns (for example in the case
where recognition and enforcement are obviously incompatible with the
rules concerning conflicts of laws of the State requested, unless the result
would have been reached by observing these rules would have been the
same as that which the required court reached in giving its judgment
Or, on the same hypothesis, for example should recognition and enforcement
of a judgment on copyright and neighbouring rights be refused if the
original judgment would be manifestly incompatible with principles of
intellectual property protection of the State.
12. Provisional and protective measures
12.1 Do you think that provisional and protective measures taken on the basis of
national law should be capable of being recognised and enforced in the other
contracting States or simply be available under the Convention?
12.2 The 1999 preliminary draft dealt with the provisional or protective measures.
Do you think that the Convention should be confined to measures that are both
provisional and protective (see footnote 94 in the new text)?
12.3 Do you think that the Convention should define what is a provisional and
protective measure for its own purposes? What do you think of the definitions in
Article 13(4)? Do you feel they are capable of covering all the provisional and
protective measures useful to the business world?
12.4 What do you expect from a provision on the provisional or protective
measures in a Convention of this nature? What needs would such a provision help
to meet? Explain. On the contrary, should certain fields perhaps be excluded from
a provision allowing the movement of provisional and/or protective measures?
13. Jurisdiction based on national law
Should the grounds of jurisdiction under national law be available even against a
protective provision (Articles 7 and 8) or an exclusive jurisdiction? (this question
is related to 6-1, 7-1 and 11-1) (Cf. note 105).
14. Prohibited grounds of jurisdiction
Do the grounds of jurisdiction that it is considered desirable to prohibit and that are
on this list appear to you to have been well characterised?
In the course of your professional experience or in conducting cases in third
countries, have you already been confronted with the exercise of the one or more
of these grounds of jurisdiction? Describe and explain.
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What is your opinion of the human rights exception in Article 18-3? Is it
circumscribed sufficiently or is it too broad? Explain.
15. Lis pendens and "forum non conveniens"
Does the lis pendens mechanism appear to you to be clear enough and capable of
underlying an effective court procedure?
What do you think of the mechanism relating to the refusal by a court to exercise the
jurisdiction on the basis of Article 22 of the draft convention? Do the guarantees
provided for in paragraph 4 for the applicant’s benefit appear you sufficiently
effective to preserve his rights vis-à-vis a dilatory request from the defendant for
the court to decline jurisdiction? If not, what would you recommend?
16. Recognition and enforcement
Do the recognition and enforcement rules appear to you to be sufficiently liberal or
rather likely to allow excessive free movement of judgements? Do they seem to
you to be still too restrictive to encourage recognition and enforcement? Explain.
Would a provision allowing legal aid to be granted for natural persons residing in a
contracting State for recognition and enforcement proceedings in another
contracting state, of the kind in Article 32, seem useful to you?
What is your opinion of Article 33, which would allow recognition and enforcement
in the Member States of non-compensatory damages, including exemplary and
punitive damages, and court costs and expenses, on certain conditions?
Do you think the Convention should allow the enforcement of authentic instruments
and approved out-of-court settlements? If so, by what procedures?
17. Relationship between the Hague Convention and European instruments (Article 37,
Annex I)
To what extent do you think that the Hague Convention should preserve the operation
of European instruments relating to jurisdiction and/or the recognition and
enforcement of judgments in civil and commercial matters, and in particular
Regulation No 44/2001 (Brussels 1)?
In particular, where the defendant is domiciled in a Community Member State but the
claimant is in a non-member country, do you think that Regulation No 44/2001
should be applied?
18. Ratification and accession (Article 42)
18.1 Do you think that the Convention should apply only between the
Community, the Member States and the other contracting States who have
expressly chosen to be bound to each other (bilateralisation of entry into force) or
that ratification could be open to all the Hague Conference Member States at the
diplomatic conference?
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We would be very glad to receive your written answers (please feel free to answer only to the
questions that interest you) before the hearing (by e-mail: [email protected]
<mailto:[email protected]>or by fax: 32/2/299.64.57).
The hearing will be devoted to an open discussion on the most important questions.
- 10 -
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