The 2005 Choice of Court Convention provides a litigation counterpart to the 1958 New York Convention which concerns the transnational enforceability of arbitral awards. Like the 1958 New York Convention, it establishes rules for enforcing private party agreements regarding the forum for the resolution of disputes, and rules for recognising and enforcing the decisions issued by the chosen forum. This Chapter traces the evolution of this instrument, explaining the process which resulted in something less comprehensive than originally envisioned when negotiations to develop and adopt a convention for the recognition and enforcement of foreign judgments began in the early 1990s. It then provides an introduction to the 2005 Choice of Court Convention, beginning with a review of its basic rules, followed by a discussion of some of the major issues considered during the course of negotiations and resolved in the text. Finally, it considers the current status of the Convention and its value to both private parties and States. The author notes that the Convention should have significant impact on both litigation and contract drafting practice. In the litigation realm, it provides clear uniform rules both for honouring exclusive choice of court agreements at the jurisdiction stage, and for recognising and enforcing the resulting judgments. It should significantly reduce litigation costs when an exclusive choice of court agreement is involved. At the contract drafting stage, the 2005 Choice of Court Convention is likely to have even greater impact. The author argues that with a subscription similarly broad as the 1958 New York Convention, the 2005 Choice of Court Convention would allow contract drafters to consider properly the basic advantages and disadvantages of litigation and arbitration, and select the relevant forum based on a more level playing field.
Ronald A. Brand
The growth of global trade requires the development of private international law consistent with the development of international trade law. The recognition of foreign judgments is a necessary part of both of these areas of the law. There cannot be consistent increase in the free movement of goods, services and capital without the corresponding free movement of judgments. Thus, the law of judgments recognition must develop with an eye on its impact on and its consistency with international trade law. This chapter sets out the current law on judgments recognition in the world’s three largest economies: the United States, the European Union and China. It then considers challenges to the development of judgments recognition law both at the global level and within the United States. At the global level, this requires an assessment of the May 2018 draft text for a Hague Convention on the recognition of foreign judgments. At the national level in the United States, this requires an assessment of the restrictions and problems created by having judgments recognition law largely determined at the state, rather than the federal, level. This has implications for global developments in terms of the ability of the United States to become a party to both the 2005 Hague Convention on Choice of Court Agreements and any new Hague Convention on the recognition of foreign judgments. The chapter concludes with a full list of challenges to judgments recognition law and concerns regarding recent developments.