The 2005 Hague Convention on Choice of Court Agreements

• Jurisdiction: South Africa
• Author: Christian Schulze
• Citation: (2007) 19 SA Merc LJ 140
• Pages: 140-150
• Date: 16 August 2019
• Published date: 16 August 2019

The 2005 Hague Convention on Choice

of Court Agreements

CHRISTIAN SCHULZE*

University of South Africa

1 Introduction

In response to the difficulties of getting judgments recognised and enforced

outside the state from which they originate, the Hague Conference on Private

International Law

1

initiated a project in 1993 to draft what was to become the

Hague Convention on Jurisdiction and Foreign Judgments in Civil and

Commercial Matters. This was commonly referred to as the ‘judgments

project’. The project was largely due to the initiative of the United States of

America.

2

The initiative was nothing new. An earlier Hague Convention on the

recognition of judgments had been negotiated throughout the 1960s and had

resulted in the Convention on the Recognition and Enforcement of Foreign

Judgments in Civil and Commercial Matters of 1 February 1971. However, it

did not enter into effect, although it was ratifie by the required minimum of

three states: Cyprus, the Netherlands and Portugal.

3

Nevertheless, the

delegations interested in the ‘judgments project’ considered it important to

overcome difficulties in international trade arising from problems with

enforcing judgments abroad by negotiating a new treaty in the area, one

whose form would not be exceedingly complex and which would still be of

interest to the European nations who had turned their attention to the Brussels

Convention

4

and the Lugano Convention

5

respectively.

6

However, in late

* First State Examination (Hannover) Dr Iuris (Göttingen) Higher State Examination (Hamburg).

Professor of Law, Research Director, Institute of Foreign and Comparative Law, School of Law,

University of South Africa.

1

The Hague Conference on Private International Law, an intergovernmental organisation with 64

member countries, was established in 1893 to negotiate and draft multilateral treaties or conventions in

the different field of private international law. On the history of the Hague Conference and for a list of

its member countries, see http://www.hcch.net. The record of the Hague Conference shows that

conventions on international co-operation and on the protection of children have a higher ratificatio

rate than choice-of-law conventions: see TM de Boer ‘Prospects for European Conflict Law in the

Twenty-First Century’in: Patrick J Borchers & Joachim Zekoll (eds) International Conflict of Laws for

the Third Millennium: Essays in Honor of Friedrich K Juenger (2001) 193 at 207-8.

2

Not being a party to any bilateral or multilateral convention on foreign judgment recognition, the

US sought to create a basis on which private parties could enforce American judgments without having

to re-litigate abroad: see Louise E Teitz ‘The Hague Choice of Court Convention: Validating Party

Autonomy and Providing an Alternative toArbitration’ (2005) 53 American J of Comparative Law 543.

3

Peter Nygh ‘The Preliminary Draft Hague Convention on Jurisdiction and Foreign Judgments in

Civil and Commercial Matters’ in: Borchers & Zekoll op cit note 1 at 261; Samuel P Baumgartner The

Proposed Hague Convention on Jurisdiction and Foreign Judgments (2003) at 1-3.

4

The Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial

Matters of 27 Sep 1968, which came into effect on 1 Jan 1973: see 1972 Official J (L 299) 32.

5

The Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial

Matters of 16 Sep 1988, which had been negotiated for the European Free Trade Association (‘EFTA’)

countries and which mirrors the Brussels Convention by adopting the same fundamental principles: see

1988 Official J (L 319) 40.

6

On 1 Mar 2002, the Council Regulation (EC) 44/2001 2001 Official J (L 12) came into effect. It

replaced the Brussels Convention for the member states of the European Union, with the exception of

140

(2007) 19 SA Merc LJ 140

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