421 65 Västra Frölunda
Lona Knapes gata 5
421 32 Västra Frölunda
Some observers say the pro-arbitration trend in international commercial transactions could shift in favor of litigation, as a contract came into effect last year that facilitates the enforcement of jurisdiction agreements (or ”forum selection clauses”) and decisions of foreign courts. The Hague Convention on Jurisdiction Conventions aims to establish a system for the recognition of judgments having the same degree of predictability and enforceability as arbitral awards under the New York Convention. (d) An agreement of exclusive jurisdiction that forms part of a contract shall be treated as an agreement independent of the other provisions of the contract. The validity of the exclusive agreement on jurisdiction cannot be contested on the sole ground that the contract is invalid. 2. Where the wording of the judgment does not enable the requested court to verify that the conditions set out in this Chapter are fulfilled, it may require all the necessary documents. 3. The application for recognition or enforcement may be accompanied by a document issued by a court (including a judicial official) of the State of origin in the form recommended and published by the Hague Conference on Private International Law. 4. Where the documents referred to in this Article are not drawn up 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. The procedure for recognition, declaration of enforceability or registration for the enforcement and enforcement of the judgment shall be governed by the law of the requested State, unless otherwise provided for in this Convention. The court seized will act quickly.
International commercial arbitration has long been considered indispensable for global capital flows; It allows the parties to the transaction to access a forum chosen jointly in the event of a dispute between them and leads to an enforceable award at the end of the arbitration. However, with recent developments, the monopoly of arbitration institutions on the settlement of international disputes could gradually change. Two decades of research, elaboration and negotiations conducted under the auspices of the Hague Conference on Private International Law led to the creation of the Hague Convention on Jurisdiction Conventions (the ”Hague Convention” or ”Convention”) in June 2005. Two years later, Mexico was the only country to ratify, but after a decade of languishing as an ineffective convention, the Latvian Presidency of the European Union (”EU”) deposited an instrument of ratification on behalf of 28 EU Member States.  Following these accessions, the Convention entered into force on 1 October 2015. The United States and Singapore have also signed the convention, but neither has ratified it so far. The purpose of the Hague Convention is quite simple. Where the Parties have agreed to settle their commercial disputes before a particular national court, the Agreement provides that this Agreement shall be enforced in each Signatory State, that the other Signatory States shall refrain from asserting their jurisdiction in the matter and that a subsequent judgment of the chosen court shall be recognised in the other Signatory States.  The long-term objective is to establish an international legal system for jurisdictional conventions, similar to that established for arbitration agreements by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the ”New York Convention”). This would be an important first step towards equating judgments with arbitral awards when it comes to global enforcement. (a) jurisdiction with respect to the subject matter or value of the claim; (b) the internal division of jurisdiction among the courts of a Contracting State. However, where the chosen court has a margin of discretion in the transfer of a dispute, due account should be taken of the choice of the parties.
(a) the agreement is null and void under the law of the State of the court chosen; (b) a party has not been able to conclude the contract under the law of the State of the court seised; (c) the implementation of the agreement would result in a manifest injustice or would be manifestly contrary to public policy in the State of the court seised; (d) for exceptional reasons beyond the control of the parties, the contract cannot reasonably be performed; or (e) the chosen court has decided not to hear the case. Court settlements (settlement courts) approved by a court of a Contracting State designated in an exclusive agreement conferring jurisdiction or concluded before that court in the course of proceedings and which are enforceable in the same manner as a judgment of the State of origin shall be enforced under this Convention in the same manner as a judgment. However, party autonomy does not mean that an alleged international arbitration clause or jurisdictional selection agreement will be promulgated. On the contrary, the preservation of party autonomy means that these dispute settlement agreements are implemented that the commercial parties have actually concluded. Therefore, both the provisions of the Convention and those of the New York Convention governing the handling of disputes to the existence, validity or scope of dispute settlement agreements – and thus the consent of the parties to a particular jurisdiction – are of paramount importance. The Convention does not correspond to the treatment of party autonomy by the New York Convention in this regard. Under the New York Convention, the existence, validity or scope of an arbitration agreement can generally be challenged in three phases: (a) in the event of a challenge to the validity of the arbitration agreement, both in arbitration and in a dispute before the arbitrator (and often elsewhere); (b) in the event of a challenge to an arbitral award in proceedings for annulment before the national courts supervising the arbitration proceedings at the seat of the arbitration; and (c) in challenges to the recognition of the award in proceedings before foreign courts outside the arbitral tribunal. The results of either of these challenges in a particular national court system (or arbitration) generally do not have exclusive effect in other jurisdictions.3)Gary Born, International Commercial Arbitration 3797-3808, 3995-4000 (3rd ed. 2021). Accordingly, the parties are not required to arbitrate, nor bound by an arbitral award, unless several independent investigations have been conducted into the existence and scope of meaningful consent to arbitration, including investigations conducted both by the arbitrators themselves and by the national courts of the recognition forum. `The wording [of Article 9(e)] has been carefully chosen.
The court seised may re-examine something that may have occurred in the particular case that led to the particular judgment for which recognition and enforcement are sought. Article 9 (e) is not an invitation to a large-scale attack on the nature, character or alleged conduct of the foreign judicial or judicial system as a whole. 6)Ronald A. Brand & Paul M. Herrup, The 2005 Hague Convention on Choice of Choice of Court Agreements: Commentary and Documents 118 (3rd ed. 2008) (emphasis added). 1. The declarations referred to in Articles 19, 20, 21, 22 and 26 may be made at the time of signature, ratification, acceptance, approval or accession or at any time thereafter, and may be amended or withdrawn at any time.
2. Declarations, amendments 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 for the State concerned at the same time as the entry into force of this Convention. 4. A declaration made at a later date and any modification or withdrawal of a declaration shall take effect on the first day of the month following the expiry of a period of three months from the date of receipt of the notification by the depositary. 5. A declaration under Articles 19, 20, 21 and 26 shall not apply to exclusive agreements conferring jurisdiction concluded before it takes effect. The Convention strives to be a global charter governing international agreements on the selection of bodies and the decisions of national courts, and is promoted as an important step in the development of the international civil process. Despite these ambitions, the Convention has fundamental structural and drafting flaws, making it unsuitable for ratification by the legal systems attached to the rule of law. These are the three pillars of the Hague Convention and they are designed to work together.
For example, if two parties confer exclusive jurisdiction on the Spanish courts in their contract, but one party nevertheless initiates proceedings in Mexico, the Mexican court is obliged to suspend or terminate those proceedings in accordance with its obligations under the Convention. Similarly, once the Spanish court has rendered its decision, the Mexican courts will be obliged to execute it. 1. This Convention shall apply in international affairs to exclusive agreements conferring jurisdiction concluded in civil or commercial matters. .