Richard Garnett on "The Hague Choice of Court Convention: Magnum Opus or Much Ado About Nothing?"

Richard Garnett (University of Melbourne – Law School) has a post on SSRN entitled: “The Hague Choice of Court Convention: Magnum Opus or Much Ado About Nothing?”. Journal of Private International Law, Vol. 5, No. 1, 2009 /U of Melbourne Legal Studies Research Paper No. 503. The abstract reads:
It is a truism to note that in the past 50 years there has been an enormous expansion in international commerce and communications and that with such expansion there has been a proportionate increase in the volume and intensity of transnational disputes. The growth in such disputes has led to greater contact and conflict between legal systems. Rules of private international law which arose only rarely in the business of most national courts are now examined and applied regularly.

The problem of multi-jurisdictional adjudication where a single transaction spawns applications for relief in a number of countries pursuant to a number of different laws is becoming commonplace. Such a development has cast particular light on the rules for establishing jurisdiction in national courts and also the principles governing recognition and enforcement of judgments of foreign courts. Once greater attention and scrutiny was placed on the national rules of jurisdiction and enforcement of judgments it is not surprising that disparities and inconsistencies of approach were uncovered.

Typically, European defendants would complain of excessive exercise of jurisdiction by United States courts while US plaintiffs would bemoan the fact that European (and other national) courts were inconsistent and unreliable in recognising US judgments. While such a situation had been present for a long time it was the sheer volume of recent transnational disputes that made a solution more pressing.

The other development which had masked the problem of disparate national jurisdictional and judgment rules was the increased use and popularity of international commercial arbitration beginning in the 1980s. Once advisers realised that they could refer transnational business disputes to a private, neutral panel of their choice whose awards would be recognised by national courts in the vast majority of cases, the problems of transnational litigation could be often ignored.

Yet, international commercial arbitration has not been without its critics or its disadvantages, in particular cost in the large institutional arbitrations. This fact, combined with the problem that a number of transnational disputes could not be submitted to arbitration (eg. personal injury, consumer and employment cases) meant that the need for a globally uniform system of jurisdiction and judgment rules remained acute.

Paul Beaumont in his article in this colloquium traces the at times tortuous history of the Hague Conference negotiations and how the Hague Convention on Choice of Court Agreements (“the Convention”) emerged from what had originally been envisaged as a much larger project. Other contributors to this colloquium have made detailed considerations of particular provisions or subject matter in the Hague Convention. My task, by contrast, is to examine the Convention from a more holistic and forward-looking perspective. Specifically, the question I will address is whether the Convention will be regarded as a great achievement in the history of multilateral reform of private international law or instead will it be seen as a narrow document which allows too much scope for the intrusion of national interests at the expense of harmonisation?

In addressing this dichotomy, the Hague Convention will be examined from two main perspectives: firstly the likely impact of its principal provisions in Australian law and secondly the response to the Hague Convention among governments, practitioners and scholars in other potential Contracting States.

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