Venue in Transnational Litigation: Party Autonomy Adds New Impetus to the 'Judgment Project'

• Jurisdiction: South Africa
• Author: Christa Roodt
• Published date: 16 August 2019
• Pages: 13-30
• Date: 16 August 2019

Venue in Transnational Litigation: Party

Autonomy Adds New Impetus to the

‘Judgment Project’

CHRISTA ROODT*

University of South Africa

IRENE-MARIE ESSER**

University of South Africa

1 Introduction

There seems to be a general trend among scholars who sustain their interest

in commercial conf‌l ict of laws to focus on jurisdiction and choice of forum

instead of choice-of-law rules and criteria. Some European authors1 actively

encourage adopting the grounds of jurisdiction and proper jurisdictional

standards as the main focus point, instead of the development and critique of

choice-of-law rules. Global evidence of the shift to the grounds of jurisdiction

came in the form of the worldwide judgment convention project of the Hague

Conference on Private International Law (‘judgment project’), which unfolded

between 1992 and 2002.2 This initiative suspended the scholarly belief that

jurisdiction by the originating court and recognition and enforcement of foreign

judgments by a foreign court have little in common and that there is suff‌i cient

reason to analyse them separately.3 Currently, the question of venue is seen to

be more pertinent in conf‌l ict of laws4 than choice of law, even in matters of

tort or delict.5

13

* LLB (Pret) LLM (Unisa) LLD (UFS). Professor in Jurisprudence, University of South Africa,

Pretoria.

** LLB (Stell) LLM (Aberdeen). Senior lecturer in Jurisprudence, University of South Africa, Pretoria.

1 Th M De Boer ‘Prospects for European Conf‌l icts Law in the Twenty-First Century’ in Patrick J

Borchers & Joachim Zekoll (eds) International Conf‌l ict of Laws for the Third Millennium: Essays in

Honour of Friedrich K Juenger (2001) 193 at 207.

2 Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial

Matters, adopted by the Special Commission and published on 30 October 1999, considered at the

Nineteenth Session of the Hague Conference on Private International Law (2000), and revised at a

Diplomatic Conference in June 2001 (Summary of the Outcome of the Discussion in Commission II of

the First Part of the Diplomatic Conference, 6–20 June 2001). Drafts are accessible at <www.hcch.net>,

last visited on 20 April 2005.

3 A Briggs ‘Which Foreign Judgments Should We Recognize Today?’ (1987) 36 Internationql &

Comparative LQ 240; Alan Reed ‘A New Model of Jurisdictional Propriety for Anglo-American Foreign

Judgment Recognition and Enforcement: Something Old, Something Borrowed, Something New?’

(2003) 25 Loyola of Los Angeles International & Comparative LR 243 at 252.

4 Andrew S Bell Forum Shopping and Venue in Transnational Litigation (2003) ¶ 6.15.

5 In Schalk Willem Burger Lubbe (Suing as Administrator of the Estate of Rachel Jacoba Lubbe) &

others v Cape plc [2000] 4 All ER 268, the main question was whether South Africa or England was the

appropriate forum. The claimant instituted action in the High Court in England. The defendants objected

to that on the basis of forum non conveniens. They stated that the natural forum for pursuit of action was

in South Africa. See AT Magaisa ‘Suing Multinational Corporate Groups for Torts in Wake of the Lubbe

Case’ (2001) 2 Law Social Justice and Global Development, accessible at <www2.warwick.ac.uk>, last

visited on 5 July 2005.

(2006) 18 SA Merc LJ 13

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14 (2006) 18 SA Merc LJ

The judgment project could have created a predictable legal system for the

resolution of global commercial disputes arising from international commercial

transactions.6 But what would have been a huge step towards a more integrated

legal system without regard to national boundaries7 in 2003 became a Draft

Text focused exclusively on choice-of-court agreements.8 The 2003 Draft Text

sought to establish rules for enforcing private party agreements regarding

the forum for resolution of business-to-business disputes and rules for the

recognition and enforcement of decisions issued by the chosen forum.9 Thus

the project was redirected to isolate one jurisdictional ground based on the

autonomous selection of forum by the parties,10 but fortunately the link between

jurisdiction and the recognition and enforcement of judgments delivered on the

basis of this particular ground was retained.

In terms of a broad interpretation of party autonomy, parties may select not

only the law applicable to a commercial transaction but may also expressly

provide for venue in their contract in the hope of minimizing conf‌l ict over

venue in subsequent litigation.11 Where the rule applies that the law of the place

where an action is instituted (lex fori) governs procedural matters,12 a choice-

of-forum clause amounts to a choice-of-law clause in respect of procedural

matters. Regarded as a choice of procedural law, choice of forum is an adjunct

to the principle of party autonomy.

At the heart of a plea for coherency across the sub-f‌i elds of conf‌l ict of laws lies

the ideal of internal and international decisional harmony.13 Recognizing the need

for a coherent law of international litigation that respects the co-linearity of the

rules on jurisdiction, choice of law, and judgments does not necessarily imply

6 See P Nygh ‘The Preliminary Draft Hague Convention on Jurisdiction and Foreign Judgments in

Civil and Commercial Matters’ in Borchers & Zekoll op cit note 1 261 at 268.

7 PJ Borchers ‘A Few Little Issues for the Hague Judgments Negotiations’ (1998) 24 Brooklyn J of

International Law 159.

8 When the Commission on General Affairs and Policy of the Conference met in April 2002, it tasked

the Permanent Bureau to prepare a new text (see the Hague Conference on Private International Law

Report on the work of the informal working group on the judgments project, especially on the preliminary

text achieved at its third meeting, 25–28 March 2003 (June 2003)). When the Special Commission met in

December 2003, it used Working Document No 49. The result was the Draft Report on the Preliminary

Draft Convention on Choice-of-Courts Agreements No 25 of March 2004, compiled by Masato Dagauchi

and Trevor C Hartley, accessible at <http://www.hcch.net/upload/wop/jdgm_pd25e.pdf>, last visited

on 20 April 2005. When it met again in April 2004, it considered Working Document No 110, being

a Proposal by the Drafting Committee on Exclusive Choice-of-Court Agreements, accessible at <www.

hcch.net> (‘Working Document 110’). In December 2004, a Draft Report on the Preliminary Convention

on Exclusive Choice-of-Court Agreements No 26 was compiled by M Dagauchi and T Hartley (the

‘December 2004 Draft Report”). The Hague Convention on Choice of Court Agreements was adopted

on 30 June 2005 as part of the Final Act of the Twentieth Session of the Hague Conference on Private

International Law. It is accessible at <http://www.hcch.net/index_en.php?act=conventions.pdf&cid=98>,

last visited on 10 July 2005.

9 Ronald A Brand ‘A Global Convention on Choice-of-Court Agreements’ (2004) 10 ILSA J of

International and Comparative Law 345 (this article is based on the preliminary document of June 2003

(see note 8 above).

10 See, generally, Brand op cit note 9 at 351; Dan Jerker B Svantesson ‘An Update on the Proposed

Hague Convention on Exclusive Choice-of-Court Agreements’ (2005) Computer Law and Security

Report 21 at 29.

11 Bell op cit note 4 in ¶ 5.01ff. Peter Nygh Autonomy in International Contracts (1999) 1.

12 Bell op cit note 4 in ¶ 2.09.

13 K Boele-Woelki, C Joustra & G Steenhoff ‘Dutch Private International Law at the End of the 20th

Century: Pluralism of Methods’ (1998) 15th International Congress of Comparative Law 203 at 205,

accessible at <www.lib.uchicago.edu> under ‘Netherlands Reports’, last visited on 6 January 2005.

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