The Hague Convention on Choice of Court Agreements

The Hague Convention on Choice of Court Agreements (the “Hague Convention”) is a multilateral instrument concerned with wholly exclusive choice of court agreements (jurisdiction clauses) in favour of the courts of Hague Contracting States.

In that regard, it does two things. First, it obliges a Hague Contracting State to give effect to such a clause when in favour of itself (i.e. to accept jurisdiction as the chosen forum – in which case it cannot decline jurisdiction on the basis of forum non conveniens or lis pendens) or if in favour of another Hague Contracting State (i.e. to decline jurisdiction as the non-chosen forum – subject to a limited number of exceptions).

Second, judgments from a court designated in such a clause will be entitled to recognition and enforcement in other Hague Contracting States. There are limited grounds for refusal which are similar to those under the New York Convention on arbitration awards.

The Hague Convention entered into force for the first time, and in respect of the EU Member States (excluding Denmark) and Mexico, on 1 October 2015. (As per the below, Denmark’s accession has occurred separately from the other EU Member States and the Convention will therefore have a different entry into force date in respect of Denmark. In the following, therefore, references to "EU Member States" need to be read bearing this in mind).

Since then Singapore has ratified the Convention and it entered into force in respect of Singapore on 1 October 2016. In addition, 1 August 2018, the Convention entered into force in respect of Montenegro and, on 1 September 2018, it entered into force in respect of Denmark.

Note that although some other States have signed the Hague Convention (the US, in 2009, Ukraine, in 2016, and China in 2017) none of those states have yet ratified it – so they are not yet Hague Contracting States, nor currently due to become one (signature, as opposed to ratification, of the Hague Convention only indicates a willingness to proceed towards such a step).

An up to date table of Hague Contracting States, the date upon which it entered into force for each, a record of any declarations (see below), and the text of the Hague Convention can be found here. The Hague Convention is also accompanied by an official explanatory report; the “Hartley-Dougachi Report” which can also be found at the above link.

The Hague Convention is a technical instrument and there are a number of key elements to its operation. In particular:

(i) Only jurisdiction clauses which meet its definition of "exclusive choice of court agreement" fall within the scope of the Hague Convention. This definition is limited to a fully exclusive choice in favour of the courts of one Hague Contracting State (or one or more specific courts of such a State) only. So, not included within this definition, amongst other things, are jurisdiction clauses in favour of the courts of two or more States (whether one or both are Hague Contracting States, and whether the clause is otherwise exclusive or not), non-exclusive jurisdiction clauses or exclusive jurisdiction clauses expressed to be for the “benefit” of one party (also known as a "one-way" exclusive jurisdiction clauses). In short, only clauses of this type (and without the addition of a “benefit” clause) in favour of the courts of one Hague Contracting State (or one or more specific courts of such a State) only fall within the scope of the Hague Convention.

(The only exception to this is an optional extension, under Article 22, of the Hague Convention’s recognition and enforcement regime to choices in favour of Hague Contracting States falling outside of that definition. That, however, depends upon reciprocal declarations having been entered by the origin and destination Hague Contracting States. Currently, no such declarations have been made by any such State).

If the jurisdiction clause does not meet this definition then the case will fall outside the scope of the Hague Convention and so, for example, any consequent judgment will not (in the absence of any relevant Article 22 declarations) obtain the benefit of the Hague Convention’s recognition and enforcement provisions. This is not, however, to be misunderstood as meaning that, within the Hague Contracting States, the Hague Convention prohibits the use of such clauses or otherwise prohibits recognition and enforcement from being granted to a judgment consequent to such a clause. Instead, for the consequences of a case falling outside the scope of the Hague Convention on this basis see the final paragraphs of this section.

(ii) The Hague Convention only applies to an “exclusive choice of court agreement” concluded after the Hague Convention came into force in the designated Hague Contracting State, and otherwise applies in proceedings before a Hague Contracting State provided they were instituted after the Hague Convention came into force in the State seised with those proceedings.

(iii) A number of subject matters areas are excluded from the scope of the Hague Convention.

(iv) Hague Contracting States have the ability to enter declarations on a number of matters. Depending upon whether this is done, and to what extent, the Hague Convention’s operation may be affected. So whether any have been entered by a relevant Hague Contracting State will need to be understood at the time of contracting. The EU has entered one declaration applying to the EU Member States (minus Denmark) and excluding , to an extent, insurance contracts from the scope of the Hague Convention. Neither Mexico, nor Singapore, have entered any. Like the rest of the EU, Denmark (in respect of which the Hague Convention will enter into force on 1 September 2018) has also entered a declaration regarding exclusion of insurance contracts).

Further, the Hague Convention contains a number of provisions which determine the priority between itself and any other treaties, or rules of an economic integration organisation (e.g. the Brussels I Recast), which cover the same matters as the Hague Convention (see Article 26 of the Hague Convention). Where such instruments exist, the effect of these provisions may be to preserve the effect of that other instrument.

Such provisions are of particular importance in so far as the EU Member States are concerned. In theory, insofar as the EU Member States are also party to the Hague Convention, that instrument, in cases within its scope, is capable of overriding the rules of the Brussels I Recast in such circumstances. 

However, the aforementioned provisions have the effect that, so far as an EU Member State court is concerned, where a matter otherwise falls within the scope of the Hague Convention;

• the Brussels I Recast will always continue to apply to the recognition and enforcement of a judgment given by one EU Member State in the territory of another (Article 26(6)(b));
• in other situations (e.g. involving jurisdictional questions), the Brussels I Recast will prevail except in cases where one party (meaning, in this context, a party both to the relevant choice of court agreement and to the proceedings) is resident in a non-EU Hague State (Article 26(6)(a)); and
• in the event of any inconsistency between the Hague Convention and the Lugano Convention 2007, that will, whilst the Lugano States remain non-Hague Contracting States, be resolved in favour of the Lugano Convention by virtue of Article 26(3);
• note also that as the recognition and enforcement of judgments from a non-EU Hague State falls outside the scope of the Brussels I Recast, judgments from such States falling within the scope of the Hague Convention will be entitled to recognition and enforcement free of any considerations of interplay with the Brussels I Recast. Although, where there is a separate recognition and enforcement treaty between the non-EU Hague State of origin and the EU Member State in which recognition and enforcement is sought, the Hague Convention's interrelationship with that treaty will be determined by the Convention’s “give-way” rules as applicable to treaties in Article 26 Hague Convention.

Finally, where a case falls outside of the Hague Convention’s scope, the effect to be given to any relevant choice of court agreement, and the recognition and enforcement of a judgment from the relevant designated court, would simply be determined by whatever rules would ordinarily otherwise apply to such matters in the relevant Hague Contracting State. This will, therefore, be the case where, for example, a case concerns a matter specifically excluded from the Convention, or involves a choice of court agreement that does not fall within the definition of “exclusive choice of court agreement” discussed above (and where, for recognition and enforcement purposes, relevant declarations under Article 22 do not exist).

For example, assume a jurisdiction clause is concluded in favour of England with a degree of non-exclusivity (e.g. it may be wholly non-exclusive or an exclusive clause with a “benefit” clause). The EU Member States, including England, will then still apply the Brussels I Recast to determine its jurisdictional effect whilst a non-EU Hague State would apply its own rules. If recognition and enforcement of a resultant judgment is then sought in the EU that would be under the Brussels I Recast, whilst in a non-EU Hague State it would then, in the absence of relevant Article 22 declarations, be governed by whatever rules would otherwise apply in that State (for example, in the absence of some other treaty, that state’s own national law).

If the Hague Convention, or any of the particular issues above, is likely to be of relevance to your case please refer to our User’s Guide to the Hague Convention (written shortly before the Hague Convention came into force for the first ever time) which deals with such matters in more detail.

In respect of choices in favour of the English court, please click here to read our analysis of the potential impact of Brexit on the effect to be given to such a clause, and any resultant judgment, in both England and EU Member States/Lugano States and (in cases falling within the scope of the Hague Convention) non-EU Hague States.