A Chinese Study On The 2005 Hague Convention On Choice Of Court Agreements

The Hague Convention of 30 June 2005 on Choice of Court Agreements is the latest and most significant achievement in the field of international jurisdiction and recognition or enforcement of foreign judgments in civil and commercial matters hold by the Hague Conference on Private International Law. Since the huge Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters was unattainable, the Hague Conference decided to scale down the objective of convention to choice of court agreements in international business-to-business cases. The goal of the Hague Convention is to improve the ability to efficiently resolve disputes and enforce judgments in international transactions. Like the New York Convention, the Hague Convention establishes rules for enforcing choice of court agreements, and rules for recognizing and enforcing the judgments issued by the chosen court, thus enhancing the predictability and certainty of results of litigation between international business-to-business parties who signed exclusive choice of court agreements. Furthermore, the Hague Convention provides the parties a reliable option instead of international arbitration to oversea litigation to resolve their disputes. The Hague Convention is quite likely to be the first widely accepted global multilateral treaty on international civil jurisdiction and recognition of foreign judgments.On 26 September 2007, Mexico deposited its instrument of accession to the Hague Convention on Choice of Court Agreements. On 19 January 2009, the Hague Convention received its first signature from the Legal Adviser to the US Secretary of State. On 1 April 2009, the European Community also signed the Hauge Convention. If either the EC or US ratify it, or another Hague member accedes and ratifies it, then the Hague Convention will enter into force. We can anticipate optimistically that its effective date will not be far away.As the third largest economy and the grand power intending to peaceful rise and participate rapidly in the globalization, China should not be passive to formulate the rules of the international games, especially for the movement of the unification of private international law. The aims of doing research on the Hague Convention on Choice of Court Agreement are not only for China’s accession to the Convention, but also providing constructive suggestions to improve its rules of international choice of court agreement and recognition and enforcement of foreign judgments.This dissertation is divided into four chapters. Chapter I of The Conclusion of the Hague Convention gives a historic review of its drafting and negotiation. Firstly, the author introduces the American unsuccessful experience in the UK/US Judgments Convention and the European successful convention, e.g. the Brussels Convention. Then the author reviews the two stages of drafting process, which help to understand the convention’s context and subject issues. Lastly, the author analyzes the reasons for the failure of the previous huge convention, and concludes that the drafters must take full account the difference and diversity of economic development and legal traditions around the world. The Convention should seek a wise and exquisite balance amongst the principle which disputes should be decided by an appropriate court, the principle of the protection of the rights of the defence, the principle of legal certainty and the principle of free movement of reasonable and justice judgments.Chapter II of The International Theory and Practice on Choice of Court Agreement discusses the international jurisdiction clause of several countries. First of all, the author explores the general theory of choice of court agreement. Then, the author compares the rules or cases in Germany, the United Kingdom, the United States and the EU Regulation. Through the detailed comparison, we can comprehend the divergence and disagreement amongst the civil- and common-law systems which will help us to understand the formation of the Hague Convention.Chapter III of The Major Issues of the Hague Convention on Choice of Court Agreement covers the three key rules and major issues which Chinese scholars concerned. First of all, the author studies the scope of the Convention, which is the most massive provision in the Convention. Secondly, the author discusses the general rules of the jurisdiction of the Convention, mainly involving the jurisdiction of the chosen court and the obligation of other courts. Then, the author investigates three important problems relating to the jurisdiction, which are the connection between the dispute or the defendant and the chosen forum, its formal validity and its substantive validity and the applicable law. At the final section of the chapter, there is a detailed analysis of rules of the recognition and enforcement of the Convention.Chapter IV of The Feasibility of China’s Accession to the Hague Convention is the most significant part of the dissertation. The authors noted that the comparison the rules between the Convention and Chinese law, or the research only from the single perspective of substantive justice, can not provide strong and comprehensive evaluation for China’s accession or not. The author points out that a convention which can satisfy the Chinese needs and accord with those Chinese interests should fully protect Chinese litigants and equally protect the interest of foreign parities. Learning from the four EU principles of jurisdiction, the author makes a theoretical model which can accord with China’s economic development and judicial reality. The four hierarchy principles with Chinese characteristics are "the principle which disputes should be decided by an appropriate court", "the principle of the protection of the rights of the defence", "the principle of legal certainty" and "the principle of free movement of reasonable and justice judgments". After testing the Hague Convention under the four principles, the author concludes that the Convention takes the two principles of "free movement of judgments" and "the legal certainty" as its basic framework, emphasizes on "the principle which dispute should be resolved by an appropriate court", but for the protection of the weak party and the rights of the defence, the Hague provides an indirect protection which is lower than that of Brussels Regulation. Fortunately, such flaw can be remedied inasmuch as the Hague Convention allows the contracting states making a statement where the state has a strong interest in not applying the Convention to a specific matter. The author proposes China accede to the Hague Convention with making such statement to protect those weak parties. The author suggests the Chinese legislative to constitute concrete and exquisite regulations to implement the Convention and improve its rules relating to international choice of court agreements and recognition or enforcement of foreign judgments.