CONVENTION ON CHOICE OF COURT AGREEMENTS
(Concluded 30 June 2005)
The States
Parties to the present Convention,
Desiring to
promote international trade and investment through enhanced judicial
co-operation,
Believing that
such co-operation can be enhanced by uniform rules on jurisdiction and on
recognition and enforcement of foreign judgments in civil or commercial
matters,
Believing that
such enhanced co-operation requires in particular an international legal regime
that provides certainty and ensures the effectiveness of exclusive choice of
court agreements between parties to commercial transactions and that governs
the recognition and enforcement of judgments resulting from proceedings based
on such agreements,
Have resolved to
conclude this Convention and have agreed upon the following provisions -
chapter i -
scope and definitions
Article 1
Scope
(1) This
Convention shall apply in international cases to exclusive choice of court
agreements concluded in civil or commercial matters.
(2) For the purposes of Chapter II, a case is international unless the
parties are resident in the same Contracting State and the relationship of the
parties and all other elements relevant to the dispute, regardless of the
location of the chosen court, are connected only with that State.
(3) For the purposes of Chapter III, a case is international where
recognition or enforcement of a foreign judgment is sought.
Article 2
Exclusions from scope
(1) This
Convention shall not apply to exclusive choice of court agreements -
a) to which a natural person acting
primarily for personal, family or household purposes (a consumer) is a party;
b) relating to contracts of
employment, including collective agreements.
(2) This
Convention shall not apply to the following matters -
a) the status and legal capacity of
natural persons;
b) maintenance obligations;
c) other family law matters,
including matrimonial property regimes and other rights or obligations arising
out of marriage or similar relationships;
d) wills and succession;
e) insolvency, composition and
analogous matters;
f) the carriage of
passengers and goods;
g) marine pollution, limitation of
liability for maritime claims, general average, and emergency towage and
salvage;
h) anti-trust (competition)
matters;
i) liability for nuclear damage;
j) claims for personal injury
brought by or on behalf of natural persons;
k) tort or delict claims for
damage to tangible property that do not arise from a contractual relationship;
l) rights in rem in immovable property, and
tenancies of immovable property;
m) the validity, nullity, or
dissolution of legal persons, and the validity of decisions of their organs;
n) the validity of intellectual
property rights other than copyright and related rights;
o) infringement of intellectual
property rights other than copyright and related rights, except where
infringement proceedings are brought for breach of a contract between the
parties relating to such rights, or could have been brought for breach of that
contract;
p) the validity of entries in
public registers.
(3)
Notwithstanding paragraph 2, proceedings are not excluded from the scope of
this Convention where a matter excluded under that paragraph arises merely as a
preliminary question and not as an object of the proceedings. In particular,
the mere fact that a matter excluded under paragraph 2 arises by way of defence
does not exclude proceedings from the Convention, if that matter is not an
object of the proceedings.
(4) This Convention shall not apply to arbitration and related
proceedings.
(5) Proceedings are not excluded from the scope of this Convention by the
mere fact that a State, including a government, a governmental agency or any
person acting for a State, is a party thereto.
(6) Nothing in this Convention shall affect privileges and immunities of
States or of international organisations, in respect of themselves and of their
property.
Article 3
Exclusive choice of court agreements
For the purposes
of this Convention -
a) "exclusive
choice of court agreement" means an agreement concluded by two or more
parties that meets the requirements of paragraph c) and
designates, for the purpose of deciding disputes which have arisen or may arise
in connection with a particular legal relationship, the courts of one
Contracting State or one or more specific courts of one Contracting State to
the exclusion of the jurisdiction of any other courts;
b) a choice of court agreement
which designates the courts of one Contracting State or one or more specific
courts of one Contracting State shall be deemed to be exclusive unless the
parties have expressly provided otherwise;
c) an exclusive choice of court
agreement must be concluded or documented -
i) in writing; or
ii) by any other means of
communication which renders information accessible so as to be usable for
subsequent reference;
d) an
exclusive choice of court agreement that forms part of a contract shall be
treated as an agreement independent of the other terms of the contract. The
validity of the exclusive choice of court agreement cannot be contested solely
on the ground that the contract is not valid.
Article 4
Other definitions
(1) In
this Convention, "judgment" means any decision on the merits
given by a court, whatever it may be called, including a decree or order, and a
determination of costs or expenses by the court (including an officer of the
court), provided that the determination relates to a decision on the merits
which may be recognised or enforced under this Convention. An interim measure
of protection is not a judgment.
(2) For the purposes of this Convention, an entity or person other than a
natural person shall be considered to be resident in the State -
a) where it has its statutory seat;
b) under whose law it was
incorporated or formed;
c) where it has its central
administration; or
d) where it has its principal
place of business.
chapter ii -
jurisdiction
Article 5
Jurisdiction of the chosen court
(1) The
court or courts of a Contracting State designated in an exclusive choice of
court agreement shall have jurisdiction to decide a dispute to which the
agreement applies, unless the agreement is null and void under the law of that
State.
(2) A court that has jurisdiction under paragraph 1 shall not decline to
exercise jurisdiction on the ground that the dispute should be decided in a
court of another State.
(3) The preceding paragraphs shall not affect rules -
a) on jurisdiction related to subject
matter or to the value of the claim;
b) on the internal allocation of
jurisdiction among the courts of a Contracting State. However, where the chosen
court has discretion as to whether to transfer a case, due consideration should
be given to the choice of the parties.
Article 6
Obligations of a court not chosen
A court of a
Contracting State other than that of the chosen court shall suspend or dismiss
proceedings to which an exclusive choice of court agreement applies
unless -
a) the
agreement is null and void under the law of the State of the chosen court;
b) a party lacked the capacity to
conclude the agreement under the law of the State of the court seised;
c) giving effect to the agreement
would lead to a manifest injustice or would be manifestly contrary to the
public policy of the State of the court seised;
d) for exceptional reasons beyond
the control of the parties, the agreement cannot reasonably be performed; or
e) the chosen court has decided
not to hear the case.
Article 7
Interim measures of protection
Interim measures
of protection are not governed by this Convention. This Convention neither
requires nor precludes the grant, refusal or termination of interim measures of
protection by a court of a Contracting State and does not affect whether or not
a party may request or a court should grant, refuse or terminate such measures.
chapter iii -
recognition and enforcement
Article 8
Recognition and enforcement
(1) A
judgment given by a court of a Contracting State designated in an exclusive
choice of court agreement shall be recognised and enforced in other Contracting
States in accordance with this Chapter. Recognition or enforcement may be
refused only on the grounds specified in this Convention.
(2) Without prejudice to such review as is necessary for the application
of the provisions of this Chapter, there shall be no review of the merits of
the judgment given by the court of origin. The court addressed shall be bound
by the findings of fact on which the court of origin based its jurisdiction,
unless the judgment was given by default.
(3) A judgment shall be recognised only if it has effect in the State of
origin, and shall be enforced only if it is enforceable in the State of origin.
(4) Recognition or enforcement may be postponed or refused if the
judgment is the subject of review in the State of origin or if the time limit
for seeking ordinary review has not expired. A refusal does not prevent a
subsequent application for recognition or enforcement of the judgment.
(5) This Article shall also apply to a judgment given by a court of a
Contracting State pursuant to a transfer of the case from the chosen court in
that Contracting State as permitted by Article 5, paragraph 3. However, where
the chosen court had discretion as to whether to transfer the case to another
court, recognition or enforcement of the judgment may be refused against a
party who objected to the transfer in a timely manner in the State of origin.
Article 9
Refusal of recognition or enforcement
Recognition or
enforcement may be refused if -
a) the
agreement was null and void under the law of the State of the chosen court,
unless the chosen court has determined that the agreement is valid;
b) a party lacked the capacity to
conclude the agreement under the law of the requested State;
c) the document which instituted
the proceedings or an equivalent document, including the essential elements of
the claim,
i) was not notified to the defendant
in sufficient time and in such a way as to enable him to arrange for his
defence, unless the defendant entered an appearance and presented his case
without contesting notification in the court of origin, provided that the law
of the State of origin permitted notification to be contested; or
ii) was notified to the defendant
in the requested State in a manner that is incompatible with fundamental
principles of the requested State concerning service of documents;
d) the
judgment was obtained by fraud in connection with a matter of procedure;
e) recognition or enforcement
would be manifestly incompatible with the public policy of the requested State,
including situations where the specific proceedings leading to the judgment
were incompatible with fundamental principles of procedural fairness of that
State;
f) the judgment is inconsistent
with a judgment given in the requested State in a dispute between the same
parties; or
g) the judgment is inconsistent
with an earlier judgment given in another State between the same parties on the
same cause of action, provided that the earlier judgment fulfils the conditions
necessary for its recognition in the requested State.
Article 10
Preliminary questions
(1) Where
a matter excluded under Article 2, paragraph 2, or under Article 21, arose as a
preliminary question, the ruling on that question shall not be recognised or
enforced under this Convention.
(2) Recognition or enforcement of a judgment may be refused if, and to
the extent that, the judgment was based on a ruling on a matter excluded under
Article 2, paragraph 2.
(3) However, in the case of a ruling on the validity of an intellectual
property right other than copyright or a related right, recognition or
enforcement of a judgment may be refused or postponed under the preceding
paragraph only where -
a) that ruling is inconsistent with a
judgment or a decision of a competent authority on that matter given in the
State under the law of which the intellectual property right arose; or
b) proceedings concerning the
validity of the intellectual property right are pending in that State.
(4)
Recognition or enforcement of a judgment may be refused if, and to the extent
that, the judgment was based on a ruling on a matter excluded pursuant to a
declaration made by the requested State under Article 21.
Article 11
Damages
(1)
Recognition or enforcement of a judgment may be refused if, and to the extent
that, the judgment awards damages, including exemplary or punitive damages,
that do not compensate a party for actual loss or harm suffered.
(2) The court addressed shall take into account whether and to what
extent the damages awarded by the court of origin serve to cover costs and
expenses relating to the proceedings.
Article 12
Judicial settlements (transactions judiciaires)
Judicial
settlements (transactions judiciaires)
which a court of a Contracting State designated in an exclusive choice of court
agreement has approved, or which have been concluded before that court in the
course of proceedings, and which are enforceable in the same manner as a
judgment in the State of origin, shall be enforced under this Convention in the
same manner as a judgment.
Article 13
Documents to be produced
(1) The
party seeking recognition or applying for enforcement shall produce -
a) a complete and certified copy of
the judgment;
b) the exclusive choice of court
agreement, a certified copy thereof, or other evidence of its existence;
c) if the judgment was given by
default, the original or a certified copy of a document establishing that the
document which instituted the proceedings or an equivalent document was
notified to the defaulting party;
d) any documents necessary to
establish that the judgment has effect or, where applicable, is enforceable in
the State of origin;
e) in the case referred to in
Article 12, a certificate of a court of the State of origin that the judicial
settlement or a part of it is enforceable in the same manner as a judgment in
the State of origin.
(2) If the
terms of the judgment do not permit the court addressed to verify whether the
conditions of this Chapter have been complied with, that court may require any
necessary documents.
(3) An application for recognition or enforcement may be accompanied by a
document, issued by a court (including an officer of the court) of the State of
origin, in the form recommended and published by the Hague Conference on
Private International Law.
(4) If the documents referred to in this Article are not in an official
language of the requested State, they shall be accompanied by a certified
translation into an official language, unless the law of the requested State
provides otherwise.
Article 14
Procedure
The procedure
for recognition, declaration of enforceability or registration for enforcement,
and the enforcement of the judgment, are governed by the law of the requested
State unless this Convention provides otherwise. The court addressed shall act
expeditiously.
Article 15
Severability
Recognition or
enforcement of a severable part of a judgment shall be granted where
recognition or enforcement of that part is applied for, or only part of the
judgment is capable of being recognised or enforced under this Convention.
chapter iv -
general clauses
Article 16
Transitional provisions
(1) This
Convention shall apply to exclusive choice of court agreements concluded after
its entry into force for the State of the chosen court.
(2) This Convention shall not apply to proceedings instituted before its
entry into force for the State of the court seised.
Article 17
Contracts of insurance and reinsurance
(1)
Proceedings under a contract of insurance or reinsurance are not excluded from
the scope of this Convention on the ground that the contract of insurance or
reinsurance relates to a matter to which this Convention does not apply.
(2) Recognition and enforcement of a judgment in respect of liability
under the terms of a contract of insurance or reinsurance may not be limited or
refused on the ground that the liability under that contract includes liability
to indemnify the insured or reinsured in respect of -
a) a matter to which this Convention does
not apply; or
b) an award of damages to which
Article 11 might apply.
Article 18
No legalisation
All documents
forwarded or delivered under this Convention shall be exempt from legalisation
or any analogous formality, including an Apostille.
Article 19
Declarations limiting jurisdiction
A State may
declare that its courts may refuse to determine disputes to which an exclusive
choice of court agreement applies if, except for the location of the chosen
court, there is no connection between that State and the parties or the
dispute.
Article 20
Declarations limiting recognition and enforcement
A State may
declare that its courts may refuse to recognise or enforce a judgment given by
a court of another Contracting State if the parties were resident in the
requested State, and the relationship of the parties and all other elements
relevant to the dispute, other than the location of the chosen court, were
connected only with the requested State.
Article 21
Declarations with respect to specific matters
(1) Where
a State has a strong interest in not applying this Convention to a specific
matter, that State may declare that it will not apply the Convention to that
matter. The State making such a declaration shall ensure that the declaration
is no broader than necessary and that the specific matter excluded is clearly
and precisely defined.
(2) With regard to that matter, the Convention shall not apply -
a) in the Contracting State that made
the declaration;
b) in other Contracting States,
where an exclusive choice of court agreement designates the courts, or one or
more specific courts, of the State that made the declaration.
Article 22
Reciprocal declarations on non-exclusive choice of court agreements
(1) A
Contracting State may declare that its courts will recognise and enforce
judgments given by courts of other Contracting States designated in a choice of
court agreement concluded by two or more parties that meets the requirements of
Article 3, paragraph c), and
designates, for the purpose of deciding disputes which have arisen or may arise
in connection with a particular legal relationship, a court or courts of one or
more Contracting States (a non-exclusive choice of court agreement).
(2) Where recognition or enforcement of a judgment given in a Contracting
State that has made such a declaration is sought in another Contracting State
that has made such a declaration, the judgment shall be recognised and enforced
under this Convention, if -
a) the court of origin was designated
in a non-exclusive choice of court agreement;
b) there exists neither a judgment
given by any other court before which proceedings could be brought in
accordance with the non-exclusive choice of court agreement, nor a proceeding
pending between the same parties in any other such court on the same cause of
action; and
c) the court of origin was the
court first seised.
Article 23
Uniform interpretation
In the
interpretation of this Convention, regard shall be had to its international
character and to the need to promote uniformity in its application.
Article 24
Review of operation of the Convention
The Secretary
General of the Hague Conference on Private International Law shall at regular
intervals make arrangements for -
a) review of the operation of this Convention, including any
declarations; and
b) consideration of whether any
amendments to this Convention are desirable.
Article 25
Non-unified legal systems
(1) In
relation to a Contracting State in which two or more systems of law apply in
different territorial units with regard to any matter dealt with in this
Convention -
a) any reference to the law or procedure of
a State shall be construed as referring, where appropriate, to the law or
procedure in force in the relevant territorial unit;
b) any reference to residence in a
State shall be construed as referring, where appropriate, to residence in the
relevant territorial unit;
c) any reference to the court or
courts of a State shall be construed as referring, where appropriate, to the
court or courts in the relevant territorial unit;
d) any reference to a connection
with a State shall be construed as referring, where appropriate, to a
connection with the relevant territorial unit.
(2)
Notwithstanding the preceding paragraph, a Contracting State with two or more
territorial units in which different systems of law apply shall not be bound to
apply this Convention to situations which involve solely such different
territorial units.
(3) A court in a territorial unit of a Contracting State with two or more
territorial units in which different systems of law apply shall not be bound to
recognise or enforce a judgment from another Contracting State solely because
the judgment has been recognised or enforced in another territorial unit of the
same Contracting State under this Convention.
(4) This Article shall not apply to a Regional Economic Integration
Organisation.
Article 26
Relationship with other international instruments
(1) This
Convention shall be interpreted so far as possible to be compatible with other
treaties in force for Contracting States, whether concluded before or after
this Convention.
(2) This Convention shall not affect the application by a Contracting
State of a treaty, whether concluded before or after this Convention, in cases
where none of the parties is resident in a Contracting State that is not a
Party to the treaty.
(3) This Convention shall not affect the application by a Contracting
State of a treaty that was concluded before this Convention entered into force
for that Contracting State, if applying this Convention would be inconsistent
with the obligations of that Contracting State to any non-Contracting State.
This paragraph shall also apply to treaties that revise or replace a treaty
concluded before this Convention entered into force for that Contracting State,
except to the extent that the revision or replacement creates new
inconsistencies with this Convention.
(4) This Convention shall not affect the application by a Contracting
State of a treaty, whether concluded before or after this Convention, for the
purposes of obtaining recognition or enforcement of a judgment given by a court
of a Contracting State that is also a Party to that treaty. However, the
judgment shall not be recognised or enforced to a lesser extent than under this
Convention.
(5) This Convention shall not affect the application by a Contracting
State of a treaty which, in relation to a specific matter, governs jurisdiction
or the recognition or enforcement of judgments, even if concluded after this
Convention and even if all States concerned are Parties to this Convention.
This paragraph shall apply only if the Contracting State has made a declaration
in respect of the treaty under this paragraph. In the case of such a
declaration, other Contracting States shall not be obliged to apply this
Convention to that specific matter to the extent of any inconsistency, where an
exclusive choice of court agreement designates the courts, or one or more
specific courts, of the Contracting State that made the declaration.
(6) This Convention shall not affect the application of the rules of a
Regional Economic Integration Organisation that is a Party to this Convention,
whether adopted before or after this Convention -
a) where none of the parties is
resident in a Contracting State that is not a Member State of the Regional
Economic Integration Organisation;
b) as concerns the recognition or
enforcement of judgments as between Member States of the Regional Economic
Integration Organisation.
chapter v -
final clauses
Article 27
Signature, ratification, acceptance, approval or accession
(1) This
Convention is open for signature by all States.
(2) This Convention is subject to ratification, acceptance or approval by
the signatory States.
(3) This Convention is open for accession by all States.
(4) Instruments of ratification, acceptance, approval or accession shall
be deposited with the Ministry of Foreign Affairs of the Kingdom of the
Netherlands, depositary of the Convention.
Article 28
Declarations with respect to non-unified legal systems
(1) If a
State has two or more territorial units in which different systems of law apply
in relation to matters dealt with in this Convention, it may at the time of
signature, ratification, acceptance, approval or accession declare that the
Convention shall extend to all its territorial units or only to one or more of
them and may modify this declaration by submitting another declaration at any
time.
(2) A declaration shall be notified to the depositary and shall state
expressly the territorial units to which the Convention applies.
(3) If a State makes no declaration under this Article, the Convention
shall extend to all territorial units of that State.
(4) This Article shall not apply to a Regional Economic Integration
Organisation.
Article 29
Regional Economic Integration Organisations
(1) A
Regional Economic Integration Organisation which is constituted solely by
sovereign States and has competence over some or all of the matters governed by
this Convention may similarly sign, accept, approve or accede to this
Convention. The Regional Economic Integration Organisation shall in that case
have the rights and obligations of a Contracting State, to the extent that the
Organisation has competence over matters governed by this Convention.
(2) The Regional Economic Integration Organisation shall, at the time of
signature, acceptance, approval or accession, notify the depositary in writing
of the matters governed by this Convention in respect of which competence has
been transferred to that Organisation by its Member States. The Organisation
shall promptly notify the depositary in writing of any changes to its
competence as specified in the most recent notice given under this paragraph.
(3) For the purposes of the entry into force of this Convention, any
instrument deposited by a Regional Economic Integration Organisation shall not
be counted unless the Regional Economic Integration Organisation declares in
accordance with Article 30 that its Member States will not be Parties to this
Convention.
(4) Any reference to a "Contracting State" or "State"
in this Convention shall apply equally, where appropriate, to a Regional
Economic Integration Organisation that is a Party to it.
Article 30
Accession by a Regional Economic Integration Organisation without its Member
States
(1) At the
time of signature, acceptance, approval or accession, a Regional Economic
Integration Organisation may declare that it exercises competence over all the
matters governed by this Convention and that its Member States will not be
Parties to this Convention but shall be bound by virtue of the signature,
acceptance, approval or accession of the Organisation.
(2) In the event that a declaration is made by a Regional Economic
Integration Organisation in accordance with paragraph 1, any reference to a
"Contracting State" or "State" in this Convention shall
apply equally, where appropriate, to the Member States of the Organisation.
Article 31
Entry into force
(1) This
Convention shall 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 referred to in Article 27.
(2) Thereafter this Convention shall enter into force -
a) for each State or Regional Economic
Integration Organisation subsequently ratifying, accepting, approving or
acceding to it, on the first day of the month following the expiration of three
months after the deposit of its instrument of ratification, acceptance,
approval or accession;
b) for a territorial unit to which
this Convention has been extended in accordance with Article 28, paragraph 1,
on the first day of the month following the expiration of three months after
the notification of the declaration referred to in that Article.
Article 32
Declarations
(1)
Declarations referred to in Articles 19, 20, 21, 22 and 26 may be made
upon signature, ratification, acceptance, approval or accession or at any time
thereafter, and may be modified or withdrawn at any time.
(2) Declarations, modifications and withdrawals shall be notified to the
depositary.
(3) A declaration made at the time of signature, ratification,
acceptance, approval or accession shall take effect simultaneously with the
entry into force of this Convention for the State concerned.
(4) A declaration made at a subsequent time, and any modification or
withdrawal of a declaration, shall take effect on the first day of the month
following the expiration of three months after the date on which the
notification is received by the depositary.
(5) A declaration under Articles 19, 20, 21 and 26 shall not apply
to exclusive choice of court agreements concluded before it takes effect.
Article 33
Denunciation
(1) This
Convention may be denounced by notification in writing to the depositary. The
denunciation may be limited to certain territorial units of a non-unified legal
system to which this Convention applies.
(2) The denunciation shall take effect on the first day of the month
following the expiration of twelve months after the date on which the
notification is received by the depositary. Where a longer period for the
denunciation to take effect is specified in the notification, the denunciation
shall take effect upon the expiration of such longer period after the date on
which the notification is received by the depositary.
Article 34
Notifications by the depositary
The depositary
shall notify the Members of the Hague Conference on Private International Law,
and other States and Regional Economic Integration Organisations which have
signed, ratified, accepted, approved or acceded in accordance with Articles 27,
29 and 30 of the following -
a) the signatures, ratifications, acceptances, approvals and
accessions referred to in Articles 27, 29 and 30;
b) the date on which this
Convention enters into force in accordance with Article 31;
c) the notifications,
declarations, modifications and withdrawals of declarations referred to in
Articles 19, 20, 21, 22, 26, 28, 29 and 30;
d) the denunciations referred to
in Article 33.
In witness
whereof the undersigned, being duly authorised thereto, have signed this
Convention.
Done at The
Hague, on 30 June 2005, in the English and French languages, both texts being
equally authentic, in a single copy which shall be deposited in the archives of
the Government of the Kingdom of the Netherlands, and of which a certified copy
shall be sent, through diplomatic channels, to each of the Member States of the
Hague Conference on Private International Law as of the date of its Twentieth
Session and to each State which participated in that Session.
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