Hague Convention on Choice of Court Agreements - Backgrounder

The Hague Convention on Private International Law concluded the Hague Convention on Choice of Court Agreements in June 2005 after thirteen (13) years of negotiation. The goal of the Convention is to improve the ability to efficiently resolve disputes and enforce judgments in cross-border transactions. For a comprehensive text on the Convention and its commentary, please click here.

In terms familiar to those drafting contracts in common law countries like the United States, the Convention establishes conditions under which the parties may contractually agree to consent to exclusive personal jurisdiction in a particular state or federal court.

Late last fall, Mexico became the first state to accede to the Hague Convention on Choice of Court Agreements. The American Bar Association has urged that the United States adopt, ratify, and implement the Convention. See Background Note, infra.

The Convention sets forth the rules by which parties in different countries prospectively agree to resolve civil or commercial disputes in an agreed forum. Further, judgments in those agreed fora must be enforced by the courts in other countries adopting the Convention, provided exceptions do not apply.

The Convention sets forth a number of public policy exceptions to its applicability. Of importance to our intellectual property clients and constituencies, the Convention is not applicable to certain intellectual property matters. Specifically, the Convention does not govern in matters regarding the invalidity of intellectual property rights (excluding copyright and related rights) and regarding infringement of intellectual property rights that occur or could be brought under contract law (again, excluding copyright and related rights). See Articles 2 (2)(n)-(o) & 10(3).

For more information about the assistance we can provide in international transactional matters, please contact us at +1.208.939.4472 or info@technologylawgroup.com.

BACKGROUND NOTE: As the development of the positive international law (treaty law) goes, conventions, once concluded, are then opened for accession by states (countries), both members of the Hague Convention and non-members. Once agreed by the specified number of states, the Convention then enters into force. This process of adoption and implementation, that is, the incorporation of the treaty's principles into the domestic law, takes several years. Note, however, that treaties may become evidence of binding customary international law even without their entry into force. Generally and in addition, parties may opt in to the applicability of a treaty even if that treaty has not yet entered into force.