Inaugural Global Conference 2019 HCCH Judgments Convention Global Enforcement of Civil amp Commercial Judgments Choice of Court Agreements the Choice of Court Convention and the Judgments Convention ID: 769936
Download Presentation The PPT/PDF document "Inaugural Global Conference -" is the property of its rightful owner. Permission is granted to download and print the materials on this web site for personal, non-commercial use only, and to display it on your personal computer provided you do not modify the materials and that you retain all copyright notices contained in the materials. By downloading content from our website, you accept the terms of this agreement.
Inaugural Global Conference -2019 HCCH Judgments Convention:Global Enforcement of Civil & Commercial JudgmentsChoice of Court Agreements: the Choice of Court Convention and the Judgments Convention Cara North Hong Kong SAR, China 9 September 2019
Overview Brief overview of the Choice of Court Convention The key differences and similarities between the Choice of Court Convention and the Judgments Convention When and how do these Conventions apply? Some examples Concluding remarks: why are these Conventions so important for practitioners and international commercial actors?
Choice of Court Convention deals with exclusive choice of court agreements that designate a court or the courts of a Contracting State. Court-based equivalent of the New York Convention Brief Overview of the Choice of Court Convention
Three basic rules: The chosen court shall hear the dispute Any non-chosen court shall suspend/dismiss proceedings Judgment given by the chosen court shall be recognised and enforced Article 5 Article 6 Article 8 Brief Overview of the Choice of Court Convention
United StatesSigned (2009); implementation at State or federal level?Canadaimplemented in Ontario (2017) Argentina Considering joining Mexico Acceded (2007) Russian Federation Considering joining European Union Signed (2009), ratified (2015) Denmark Acceded (2018) UK Acceded (2018) Singapore Signed (2015), ratified (2016) Serbia Considering joining People’s Republic of China Signed (2017) Australia Implementing legislation pending Tajikistan Considering joining Costa Rica Considering joining Montenegro Signed (2017), Ratified (2018) Ukraine Signed (2016) Kazakhstan Considering joining NB: Boundaries on this map are based upon those used by the UN Cartographic Section. The number of States reflects the Parties as recorded by the Depositary (NL MFA). Neither should be taken to imply official endorsement or acceptance . Tunisia Considering joining Brazil Considering joining Status of the Choice of Court Convention New Zealand Considering joining
Some Important Similarities Objectives (preamble) Similar exclusions from scope (Arts. 1 and 2), definitions (Art. 3 JC; Art. 4 CoCC), grounds for refusal (Art. 7 JC; Art. 9 CoCC)Similar architecture and provisions regarding process for recognition and enforcement (Chapter II JC; Chapter III CoCC)Interim measures of protection not covered (Art. 3(1)(b) JC; Art. 7 CoCC)Choice of court agreements must be in writing or by other accessible means of communication of the CoCC and the JC
The Basic Differences Choice of Court Convention Regulates: one direct ground of jurisdiction, parallel proceedings and the enforcement of judgments, rendered under exclusive choice of court agreements Judgments Convention Regulates: recognition and enforcement of judgments (i.e., no direct grounds of jurisdiction), rendered pursuant to a non-exclusive choice of court agreement, including many other indirect grounds of jurisdiction of the CoCC and the JC
Choice of Court Agreements under the Choice of Court Convention Art. 3 – Definition of exclusive choice of court agreements Presumption of exclusivity Art.22 – Reciprocal declarations on non-exclusive choice of court agreements
What are exclusive and non-exclusive choice of court agreements? Article Some examples Article Exclusive: designates the court(s) of a Contracting StateNon-Exclusive: designates the court(s) of one or more Contracting States or specifies no exclusivity Asymmetrical choice of court agreements: designates the court(s) of a Contracting State for one party, but the other party may bring proceedings in other courts.
Article The operation of the CoCC Article Company in Australia Company in Singapore Choice of Court Agreement designating Chinese Court ( e.g. in Hong Kong) Party brings proceedings in the courts of London The courts of London must decline to hear case If proceedings are brought in the courts of Hong Kong then: The judgment of the courts of Hong Kong will be recognised and enforced in other Contracting States (e.g., Australia) The courts of Hong Kong must hear the case
Choice of court agreements under the Judgments Convention Two key provisions – Art. 5(1)(m) – jurisdictional filter – choice of court agreement, other than an exclusive choice of court agreement Art. 7(1)(d) – ground for refusal of enforcement
The operation of the CoCCArticle Company in Australia (habitually resident) Company in Singapore(habitually resident)Party brings proceedings in the courts of Hong Kong and judgment is rendered in its favour Enforcement sought in Singapore : judgment not eligible for enforcement because exclusive choice of court agreement, unless another Art. 5(1)(m) filter applies or the Choice of Court Convention applies. Example 1: The operation of Article 5(1)(m) (exclusive) Choice of Court Agreement designating Chinese Court ( e.g. in Hong Kong)
The operation of the CoCC Company in Australia Company in Singapore Choice of court agreement designating Hong Kong CourtProceedings brought in the courts of SingaporeEnforcement of the Singaporean judgment sought in Australia. Australian court may refuse enforcement under Art. 7(1)(d) Example 3: The operation of Article 7(1)(d) Jurisdiction contested based on exclusive choice of court agreement
Two Final Points 1. Why does the Judgments Convention only cover non-exclusive choice of court agreements? 2. What if both Conventions apply? Is there potential for a conflict of treaties? (Art. 23 Judgments Convention)
Foreign Judgments: The Status QuoWhy are these Conventions so important for practitioners and international commercial actors? Arbitration: preferred method of dispute resolution for cross-border disputes Enforceability of arbitral award is the most valuable characteristic of international arbitration (Queen Mary 2018 International Arbitration Survey)NYC (159 States) = ease of enforcement Recognition and enforcement of foreign judgments: the most significant pitfall of cross-border commercial litigation (Burford Capital 2016, Unlocking the value of unenforced judgments) Concluding Remarks
Foreign Judgments: The Status QuoWhy are these Conventions so important for practitioners and international commercial actors? Importance for particular industries: banking and finance industry Concluding Remarks
2019 HCCH Judgments Convention&2005 HCCH Choice of Court ConventionA Multilateral Solution A Key Missing Piece Thank you!Cara North Legal Consultant, Levy Kauffman-Kohler, Geneva cara.north@lk-k.com