Issue: Hague Convention on Choice of Courts

Impact:

A Convention on Choice of Courts was negotiated as part of the ongoing Hague Conference on Private International Law. The Convention applies only to provisions in written agreements between businesses that expressly choose a court to hear any disputes arising under that agreement. If ratified by the US, the agreement could require a state court to accept jurisdiction over a dispute even though the only connection to the state is the agreement on a forum by the parties and to enforce judgments by a foreign court chosen by the parties to hear their dispute. It could also limit the application of the forum non conveniens doctrine in these cases.

Position:

 No formal position

Summary:

The State Department is now considering whether to submit legislation to Congress to implement the Convention. In order to limit the scope of federal preemption, it has asked the Uniform Law Commission (ULC) to draft a uniform act that states could enact to accept the Convention and adopt its provisions as state law. If a state declines to enact the uniform law, the federal courts would be empowered to accept cases under the convention although they would be applying state substantive law under the Erie doctrine. The US initiated discussions of the Convention in order to facilitate enforcement of American judgments by courts in other countries.

Status:

The ULC has formed a committee to draft a uniform law to implement the Convention and has invited NCSC to send an observer. The Committee held a drafting session on November 19-20, 2008. The next meeting is scheduled for February 26-27, 2009. A number of questions arose during the discussions on which the Committee would appreciate input from members of CCJ. These questions will be disseminated via the CCJ listserv when received.