Convention on Choice of Court Agreements

Outline of the Community (European Union) legislation about Convention on Choice of Court Agreements

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Convention on Choice of Court Agreements

Document or Iniciative

Council Decision 2009/397/EC of 26 February 2009 on the signing on behalf of the European Community of the Convention on Choice of Court Agreements.

Summary

The Convention on Choice of Court Agreements was concluded under The Hague Conference on Private International Law on 30 June 2005. This decision provides for the signing of that convention on behalf of the European Community.

The convention applies in international cases to exclusive choice of court agreements concluded in civil or commercial matters. Its scope excludes both consumer and employment contracts. Neither does the convention apply to a number of other matters, such as the legal capacity of natural persons, maintenance obligations and other family law matters, the carriage of passengers or goods, marine pollution, competition matters, the validity of legal persons, the validity of intellectual property rights, etc. Furthermore, it does not apply to arbitration and related proceedings.

An exclusive choice of court agreement may be concluded by two or more parties to designate the courts (or one or more specific courts) of one contracting state as having jurisdiction in disputes relating to a particular legal relationship. Such an agreement is considered to be exclusive, unless otherwise specified by the parties to the agreement. The agreement must be made in writing or by other means that allow the information to be accessed subsequently.

Jurisdiction

The designated court has jurisdiction to decide a dispute to which the agreement applies, except when its national law does not recognise the agreement as valid. Any other court of a contracting state must suspend or dismiss the related proceedings, except in cases where the agreement is null and void under the law of the state of the chosen court, the party lacked the capacity to conclude the agreement under the national law of the court seised, implementation of the agreement contravenes the public policy of the state of the court seised, the agreement cannot be performed or the chosen court decides against hearing the case.

Recognition and enforcement

The other contracting states must recognise and enforce a judgement given by the court designated in the exclusive choice of court agreement. However, the judgement must first be enforceable in the state of origin. The postponement or refusal of recognition or enforcement is possible when the judgement is under review in the state of origin or when the deadline for seeking ordinary review has not yet expired.

Recognition or enforcement of a judgement may also be refused when:

• the agreement is null and void in the state of the chosen court;
• a party lacked the capacity to conclude the agreement under the law of the requested state;
• the document instituting the proceedings was not presented in sufficient time to the defendant;
• the manner in which the document instituting the proceedings was presented to the defendant is in conflict with the fundamental principles on serving documents;
• the judgement was obtained through a fraudulent procedure;
• recognition or enforcement is manifestly incompatible with the public policy of the requested state;
• the judgement is not consistent with an earlier one given by the requested state in a dispute between the same parties;
• the judgement is not consistent with an earlier one given by another state in a dispute between the same parties and for the same action.

When requesting the recognition or enforcement of a judgement, the party needs to produce the following documents:

• a copy of the judgement;
• a copy of the exclusive choice of court agreement;
• in case the judgement was given by default, a document indicating that the defaulting party was notified of the institution of the proceedings;
• a document indicating that the judgement is enforceable in the state of origin;
• in the case of a judicial settlement, a certificate of a court indicating that the settlement is equally enforceable in the state of origin.

An application may also be made for the partial recognition or enforcement of a judgement.

The law governing the procedure for recognition, declaration for enforceability or registration for enforcement and the enforcement of the judgement is that of the requested state.

Declarations limiting jurisdiction, recognition or enforcement

A state may at any time make a declaration whereby its courts refuse to exercise their jurisdiction in determining disputes if there is no connection between the parties to the dispute and that state. Similarly, a state may make a declaration whereby its courts refuse to recognise or enforce a judgement if the parties to the dispute are resident in that state and the relationship of the parties as well as all other elements relating to the dispute are connected only with it. A state may also make a declaration whereby it will not apply this convention to a specific matter. In addition, a state may make a declaration whereby it recognises and enforces judgments given by courts of other contracting states designated in a non-exclusive choice of court agreement.

REFERENCES

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Decision 2009/397/EC	26.2.2009	–	OJ L 133 of 29.5.2009