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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.
Article17 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.
RECOMMENDED FORM UNDER THE
CONVENTION ON CHOICE OF COURT AGREEMENTS |
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