An assessment of the success of the Convention on Choice of Court Agreements 2005 as an instrument of transnational commercial dispute resolution

• Author: Biresaw, S.M.
• DOI: https://doi.org/10.47348/JCCL/V7/i2a9
• Published date: 09 November 2022
• Date: 09 November 2022
• Citation: (2021) 7(2) JCCL&P 168
• Pages: 168-198

https://doi.org/10.47348/JCCL/V7/i2a9

168

AN ASSESSMENT OF THE SUCCESS

OF THE CONVENTION ON

CHOICE OF COURT AGREEMENTS

2005 AS AN INSTRUMENT OF

TRANSNATIONAL COMMERCIAL

DISPUTE RESOLUTION

SAMUEL MAIREG BIRESAW*

Lecturer, School of Law, Debre Tabor University

Abstract

The Convention on Choice of Court Agreements (Convention), which

was developed by the Hague Convention on Private International Law

(HCCH) is a transnational litigation instrument adopted in 2005 and

brought into force in 2015. By providing the required methods and

tools to disputants in a commercial relationship, the objective of the

Convention is to create an internationally uniform legal framework

of dispute resolution that promotes cross-border trade and encourages

judicial cooperation by recognising and enforcing foreign judgments

that are given based on a choice of court agreement. This article assesses

the existing successes of the Convention in achieving its specific

commercial objectives, and considers whether it has been generally

successful in transnational commercial dispute resolution. The article

argues that the Convention has the tools needed to achieve its specific

commercial objectives, and its success in this regard depends on the

parties who choose to apply the tools provided in the Convention to

resolve their commercial disputes by signing a choice of court agreement

to that effect. I argue that although the Convention remained generally

unsuccessful until 2015, due to its late enforcement and low rate of

ratifications, since 2015 it has gradually become a success story as more

states are ratifying the Convention. The future therefore looks bright.

Keywords: commercial disputes, transnational litigation, harmo-

nisation, judicial cooperation

* LLB LLM (Business Law) LLM (International Commercial and Business Law)

(University of East Anglia, UK).

(2021) 7(2) JCCL&P 168

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169

AN ASSESSMENT OF THE SUCCESS OF THE CONVENTION ON CHOICE OF

COURT AGREEMENTS 2005

https://doi.org/10.47348/JCCL/V7/i2a9

I INTRODUCTION

The 2005 Convention on Choice of Court Agreements (Convention)

was developed and adopted under the auspices of the Hague

Convention on Private International Law (HCCH) on 30 June

2005.1 It is a conflict of law instrument that provides for uniform

rules on court jurisdiction and the recognition and enforcement

of the judgments of the selected foreign court.2 The Convention

is designed to create a mandatory international legal regime for

enforcing exclusive jurisdiction agreements and for recognising

and enforcing judgments resulting from proceedings based on

such agreements.3 The objective of the Convention is to create an

internationally uniform legal framework to promote transnational

trade by encouraging judicial cooperation via the recognition and

enforcement of judgments concerning choice of court agreements.4

In so doing, the Convention aims to facilitate party autonomy in

forum selection and the cross-border movement of judgments, to

enhance certainty and predictability for litigants, and to harmonise

the rules of choice of court agreements in member states.5

However, due to the lack of harmonised international substantive

and procedural laws, it has become increasingly difficult to settle

transnational commercial disputes uniformly.6 The solution to the

problem has been, among other things, to develop transnational

laws that can be used by judges as tools in the adjudication of such

matters.7 In this regard, conflict of law rules assist judges presiding

over transnational commercial disputes to identify the applicable law,

and the court of jurisdiction, and to facilitate the recognition and

1 T Hartley & M Dogauchi ‘Hague Conference on Private International Law Convention

of 30 June 2005 Choice of Court Agreements Explanatory Report’, available at http://

www.hcch.net/upload/expl37e.pdf, accessed on 10 September 2021.

2 HCCH ‘37: Convention of 30 June 2005 on Choice of Court Agreements’,

available at https://www.hcch.net/en/instruments/conventions/status-table/?cid

=98, accessed on 10 September 2021.

3 R A Brand ‘Arbitration or litigation? Choice of forum after the 2005 Hague

Convention on Choice of Court Agreements’ (2009) 14 Legal Studies Research

Paper Series Working Paper 1 at 20, available at http://ssrn.com/abstract=1397646,

accessed on 10 September 2021.

4 A Briggs The Conflict of Laws 3 ed (2013) 117.

5 J Landbrecht ‘The Hague Conference on Private International Law: Shaping a

global framework for party autonomy’ (2017) 1 International Business Law Journal

35 at 36.

6 R A Brand & P Herrup Choice of Court in the Absence of Multilateral Convention

[Recognition and Enforcement of Foreign Judgments in the United States with or

without a Choice of Court Agreement] (2008) 197–203. Refer to the enumerated

‘Grounds for Denial of Recognition and Enforcement of Judgments’, available at

https://doi.org/10.1017/CBO9780511551215.011, accessed on 10 September 2021.

7 J Dammann & H Hansmann ‘Globalizing commercial litigation’ (2008) 94(1)

Cornell Law Review 1 at 73.

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