I thought we were exclusive? Some issues with the Hague Convention on Choice of Court, Brussels Ia and Brexit

This blog post is by Dr Mukarrum Ahmed (Lancaster University) and Professor Paul Beaumont (University of Aberdeen). It presents a condensed version of their article in the August 2017 issue of the Journal of Private International Law. The blog post includes specific references to the actual journal article to enable the reader to branch off into the detailed discussion where relevant. It also takes account of recent developments in the Brexit negotiation that took place after the Journal article was completed.

On 1 October 2015, the Hague Convention on Choice of Court Agreements 2005 (‘Hague Convention’) entered into force in 28 Contracting States, including Mexico and all the Member States of the European Union, except Denmark. The Convention has applied between Singapore and the other Contracting States since 1 October 2016. China, Ukraine and the USA have signed the Convention indicating that they hope to ratify it in the future (see the official status table for the Convention on the Hague Conference on Private International Law’s website). The Brussels Ia Regulation, which is the European Union’s device for jurisdictional and enforcement matters, applies as of 10 January 2015 to legal proceedings instituted and to judgments rendered on or after that date. In addition to legal issues that may arise independently under the Hague Convention, some issues may manifest themselves at the interface between the Hague Convention and the Brussels Ia Regulation. Both sets of issues are likely to garner the attention of cross-border commercial litigators, transactional lawyers and private international law academics. The article examines anti-suit injunctions, concurrent proceedings and the implications of Brexit in the context of the Hague Convention and its relationship with the Brussels Ia Regulation. (See pages 387-389 of the article)

It is argued that the Hague Convention’s system of ‘qualified’ or ‘partial’ mutual trust may permit anti-suit injunctions, actions for damages for breach of exclusive jurisdiction agreements and anti-enforcement injunctions where such remedies further the objective of the Convention. (See pages 394-402 of the article) The text of the Hague Convention and the Explanatory Report by Professors Trevor Hartley and Masato Dogauchi are not explicit on this issue. However, the procès-verbal of the Diplomatic Session of the Hague Convention reveal widespread support for the proposition that the formal ‘process’ should be differentiated from the desired ‘outcome’ when considering whether anti-suit injunctions are permitted under the Convention. Where anti-suit injunctions uphold choice of court agreements and thus help achieve the intended ‘outcome’ of the Convention, there was a consensus among the official delegates at the Diplomatic Session that the Convention did not limit or constrain national courts of Contracting States from granting the remedy. (See Minutes No 9 of the Second Commission Meeting of Monday 20 June 2005 (morning) in Proceedings of the Twentieth Session of the Hague Conference on Private International Law (Permanent Bureau of the Conference, Intersentia 2010) 622, 623–24) Conversely, where the remedy impedes the sound operation of the Convention by effectively derailing proceedings in the chosen court, there was also a consensus of the official delegates at the meeting that the Convention will not permit national courts of the Contracting States to grant anti-suit injunctions.

However, intra-EU Hague Convention cases may arguably not permit remedies for breach of exclusive choice of court agreements as they may be deemed to be an infringement of the principle of mutual trust and the principle of effectiveness of EU law (effet utile) which animate the multilateral jurisdiction and judgments order of the Brussels Ia Regulation (see pages 403-405 of the article; C-159/02 Turner v Grovit [2004] ECR I-3565). If an aggrieved party does not commence proceedings in the chosen forum or commences such proceedings after the non-chosen court has rendered a decision on the validity of the choice of court agreement, the recognition and enforcement of that ruling highlights an interesting contrast between the Brussels Ia Regulation and the Hague Convention. It appears that the non-chosen court’s decision on the validity of the choice of court agreement is entitled to recognition and enforcement under the Brussels Ia Regulation. (See C-456/11 Gothaer Allgemeine Versicherung AG v Samskip GmbH EU:C:2012:719, [2013] QB 548) The Hague Convention does not similarly protect the ruling of a non-chosen court. In fact, only a judgment given by a court of a Contracting State designated in an exclusive choice of court agreement shall be recognised and enforced in other Contracting States. (See Article 8(1) of the Hague Convention) Therefore, the ruling of a non-chosen court is not entitled to recognition and enforcement under the Hague Convention’s system of ‘qualified’ or ‘partial’ mutual trust. This provides a ready explanation for the compatibility of anti-suit injunctions with the Hague Convention but does not proceed any further to transpose the same conclusion into the very different context of the Brussels Ia Regulation which prioritizes the principle of mutual trust.

The dynamics of the relationship between Article 31(2) of the Brussels Ia Regulation and Articles 5 and 6 of the Hague Convention is mapped in the article (at pages 405-408). In a case where the Hague Convention should apply rather than the Brussels Ia Regulation because one of the parties is resident in a non-EU Contracting State to the Convention even though the chosen court is in a Member State of the EU (See Article 26(6)(a) of the Hague Convention) one would expect Article 6 of the Convention to be applied by any non-chosen court in the EU. However, the fundamental nature of the Article 31(2) lis pendens mechanism under the Brussels Ia Regulation may warrant the pursuance of a different line of analysis. (See Case C-452/12 Nipponkoa Insurance Co (Europe) Ltd v Interzuid Transport BV EU:C:2013:858, [2014] I.L.Pr. 10, [36]; See also to similar effect, Case C-533/08 TNT Express Nederland BV v AXA Versicherung AG EU:C:2010:243, [2010] I.L.Pr. 35, [49]) It is argued that the Hartley–Dogauchi Report’s interpretative approach has much to commend it as it follows the path of least resistance by narrowly construing the right to sue in a non-chosen forum as an exception rather than the norm. The exceptional nature of the right to sue in the non-chosen forum under the Hague Convention can be effectively reconciled with Article 31(2) of the Brussels Ia Regulation. This will usually result in the stay of the proceedings in the non-chosen court as soon as the chosen court is seised. As a consequence, the incidence of parallel proceedings and irreconcilable judgments are curbed, which are significant objectives in their own right under the Brussels Ia Regulation. It is hoped that the yet to develop jurisprudence of the CJEU on the emergent Hague Convention and the Brussels Ia Regulation will offer definitive and authoritative answers to the issues discussed in the article.

The implications of Brexit on this topic are not yet fully clear. (See pages 409-410 of the article) The UK is a party to the Hague Choice of Court Agreements Convention as a Member State of the EU, the latter having approved the Convention for all its Member States apart from Denmark. The UK will do what is necessary to remain a party to the Convention after Brexit.  In its recently published negotiating paper – only available after the article in the Journal of Private International Law was completed – the UK Government has explicitly stated that:

“It is our intention to continue to be a leading member in the Hague Conference and to participate in those Hague Conventions to which we are already a party and those which we currently participate in by virtue of our membership of the EU.” (See Providing a cross-border civil judicial cooperation framework (PDF) at para 22)

The UK will no doubt avoid any break in the Convention’s application. Brexit will almost certainly see the end of the application of the Brussels Ia Regulation in the UK. The reason being that its uniform interpretation is secured by the CJEU through the preliminary ruling system under the Treaty on the Functioning of the European Union (TFEU).  The UK is not willing to accept that jurisdiction post-Brexit (“Leaving the EU will therefore bring an end to the direct jurisdiction of the CJEU in the UK, because the CJEU derives its jurisdiction and authority from the EU Treaties.” (See Providing a cross-border civil judicial cooperation framework at para 20) So although the UK negotiators are asking for a bespoke deal with the EU to continue something like Brussels Ia (“The UK will therefore seek an agreement with the EU that allows for close and comprehensive cross-border civil judicial cooperation on a reciprocal basis, which reflects closely the substantive principles of cooperation under the current EU framework”: see Providing a cross-border civil judicial cooperation framework at para 19) it seems improbable that the EU will agree to such a bespoke deal just with the UK when the UK does not accept the CJEU preliminary ruling system.  The EU may well say that the option for close partners of the EU in this field is the Lugano Convention. The UK Government has indicated that it would like to remain part of the Lugano Convention (see Providing a cross-border civil judicial cooperation framework at para 22). In doing so it would continue to mandate the UK courts to take account of the jurisprudence of the CJEU -when that court is interpreting Brussels Ia or the Lugano Convention – when UK courts are interpreting the Lugano Convention (see the opaque statement by the UK Government that “the UK and the EU will need to ensure future civil judicial cooperation takes into account regional legal arrangements, including the fact that the CJEU will remain the ultimate arbiter of EU law within the EU.” see Providing a cross-border civil judicial cooperation framework at para 20). However, unless the Lugano Convention is renegotiated it does not contain a good solution in relation to conflicts of jurisdiction for exclusive choice of court agreements because it has not been amended to reflect Article 31(2) of Brussels Ia and therefore still gives priority to the non-chosen court when it is seised first and the exclusively chosen court is seised second in accordance with the Gasser decision of the CJEU (see Case C-116/02 [2003] ECR I-14693).  Renegotiation of the Lugano Convention is not even on the agenda at the moment although the Gasser problem may be discussed at the Experts’ Meeting pursuant to Article 5 Protocol 2 of the Lugano Convention on 16 and 17 October 2017 in Basel, Switzerland (Professor Beaumont is attending that meeting as an invited expert).  Revision of the Lugano Convention would be a good thing, as would Norway and Switzerland becoming parties to the Hague Convention.  It seems that at least until the Lugano Convention is revised and a means is found for the UK to be a party to it (difficult if the UK does not stay in EFTA), the likely outcome post-Brexit is that the regime applicable between the UK and the EU (apart from Denmark) in relation to exclusive choice of court agreements within the scope of the Hague Convention will be the Hague Convention. The UK will be able to grant anti-suit injunctions to uphold exclusive choice of court agreements in favour of the courts in the UK even when one of the parties has brought an action contrary to that agreement in an EU Member State. The EU Member States will apply Article 6 of the Hague Convention rather than Article 31(2) of the Brussels Ia Regulation when deciding whether to decline jurisdiction in favour of the chosen court(s) in the UK.

Whilst the Hague Convention only offers a comprehensive jurisdictional regime for cases involving exclusive choice of court agreements, it does give substantial protection to the jurisdiction of UK courts designated in such an agreement which will be respected in the rest of the EU regardless of the outcome of the Brexit negotiations. Post-Brexit the recognition and enforcement regime for judgments not falling within the scope of the Hague Choice of Court Agreements Convention could be the new Hague Judgments Convention currently being negotiated in The Hague (see Working Paper No. 2016/3- Respecting Reverse Subsidiarity as an excellent strategy for the European Union at The Hague Conference on Private International Law – reflections in the context of the Judgments Project? by Paul Beaumont). Professor Beaumont will continue to be a part of the EU Negotiating team for that Convention at the Special Commission in the Hague from 13-17 November 2017. It is to be welcomed that the UK Government has affirmed its commitment to an internationalist and not just a regional approach to civil judicial co-operation:

“The UK is committed to increasing international civil judicial cooperation with third parties through our active participation in the Hague Conference on Private International Law and the United Nations Commission on International Trade Law… We will continue to be an active and supportive member of these bodies, as we are clear on the value of international and intergovernmental cooperation in this area.” See Providing a cross-border civil judicial cooperation framework at para 21.

One good thing that could come from Brexit is the powerful combination of the EU and the UK both adopting a truly internationalist perspective in the Hague Conference on Private International Law in order to genuinely enhance civil judicial co-operation throughout the world. The UK can be one of the leaders of the common law world while using its decades of experience of European co-operation to help build bridges to the civil law countries in Europe, Africa, Asia and Latin America.

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How I spent my summer: Teaching in Aberdeen

This blog post has been written by Diane Hoffmann, University of Maryland Carey School of Law.

I had the good fortune to spend most of the month of July and the first week in August teaching at the summer program in comparative law at the University of Aberdeen – a collaboration between the University of Baltimore and University of Maryland Schools of Law, in Baltimore, MD and the University of Aberdeen School of Law in Aberdeen, Scotland.

This trip was the realization of a long held aspiration for me. During my dozen years as Associate Dean at Maryland, it was my job to select the faculty member who would have the opportunity to teach and live in Aberdeen for the summer program. Sadly, I was unable to choose myself so had to wait until I stepped out of the Dean’s office and back to the faculty before I was able to put my hat into the ring of potential faculty members who might be selected for this unique opportunity. I was especially excited to be chosen this past year as Maryland faculty who have been to Aberdeen and taught in the program have had absolutely wonderful things to say about it. I was able to confirm these glowing assessments in 2009 when I had the opportunity, while in Europe for another reason, to visit my colleague from Maryland, Jana Singer, who was teaching at Aberdeen that summer. While there, I sat in on some of her classes, went to Edinburgh with the class, got a tour of Aberdeen, and had the pleasure of meeting Professor David Carey Miller, the “champion” and Director of the program in Aberdeen. It all looked like a fantastic experience for the students and faculty.

I was also excited by the prospect of teaching a Comparative Health Law course. At Maryland, I direct the Law & Health Care Program and have taught numerous health law courses ranging from our survey course on Health Care Law & Policy to specialized courses on End of Life Care and Health Care for the Poor. Although I have taught Comparative Health Law courses in recent years, I had not had the opportunity to focus on one other country and to have experts from that country come and lecture in the course. That was a big attraction of the Aberdeen course for me. Prior to the summer, I worked with then head of school, Anne-Michelle Slater and Dr Greg Gordon (the current head of school) to prepare for the course. I shared my vision of the course with them and Anne-Michelle and Greg identified a stellar group of guest speakers who could address health care law and policy in the U.K. and Scotland, more specifically.

The course focused on a comparison of four areas of health law and policy between the U.S. and the U.K./Scotland: health care systems, medical malpractice systems, allocation of scarce health care resources, and regulation of the beginning and end of life. Our guest speakers were able to speak to each of these areas of law. They included Peter Feldschreiber, a dually qualified physician and barrister from London who specializes in the regulation of pharmaceuticals and medical devices and who advises both EU and US health product companies on all aspects of European regulatory law; Neil MacLeod, a solicitor with the NHS litigation department in Scotland; Annie Sorbie and Edward Dove, both of whom specialize in health and medical law and have recently received faculty appointments at the University of Edinburgh; and Mr Scott Styles, a member of the faculty at University of Aberdeen, who, among other things, is an expert in medical ethics.

Each of these guest speakers added a great deal of excitement to our class discussions as they helped us to compare the “systems” in our home jurisdiction with that of the U.K./Scotland. Several current events also made the course come alive for the students and me. First, perhaps, is the advent of Brexit, which is provoking much uncertainty in the medical profession, regarding movement among the EU countries. One article in the news indicated that 84% of EU health professional workers in the U.K. would leave. Brexit has also raised anxiety in the pharmaceutical and medical device industries about what will be required in the UK in terms of new product approval and marketing authorizations and whether the UK will remain a part of the European Medicines Agency (EMA).

A second relevant event for the course was the case of Charlie Gard, the infant in the U.K. who had a rare terminal genetic disorder that left him blind, deaf and unable to breathe on his own. His doctors and the hospital where he was receiving care felt that his case was hopeless and they should not be required to continue to treat him. His parents, however, took the case to court fighting for the legal authority to place him on an experimental treatment plan. Each day there were new developments in the case including the Pope and President Trump offering to do whatever they could to help the parents in their quest to keep the child alive. The case offered the class a chance to consider both issues surrounding allocation of scarce medical resources and the law regarding end of life treatments.

The students enthusiastically met the challenge of debating the different aspects of health law and how they played out in the two different jurisdictions. Their keen interest in the issues under discussion made the class sessions lively and fun for me.

In addition to the class being a joy for me to teach, I enjoyed getting to know and working with some of the faculty and staff at Aberdeen, including Anne-Michelle Slater, Susan Stokeld, Greg Gordon and Carol Lawie (who kept everything going). They did a wonderful job organizing our trips to Fyvie Castle, the Town Hall in Aberdeen, as well as the High Court and Parliament in Edinburgh. The trip to Peterhead Prison and Museum was particularly impressive and informative, as we were able to compare side by side the old prison and the very new prison – a model for others in the country.

In addition to the academic side of my time in Aberdeen, I was also able to travel and see some of the sights in Scotland including the beautiful Cuillin Mountains on the Isle of Skye, the Dunnottar Castle in Stonehaven, Loch Ness outside of Inverness, and Balmoral Castle and the surrounding Cairngorms. I also was able to ride the train (via ScotRail) from Mallaig to Glasgow, touted in the tourist books as one of the most scenic train rides in Europe and a “must” experience for Harry Potter fans as it goes over the viaduct featured in the Harry Potter films. The scenery was spectacular and lived up to the hype. Another special experience was meeting a retired University of Aberdeen professor and his wife and going out to the lighthouse they own at Todhead. The views were absolutely “priceless.”

My time in Aberdeen was wonderful. At the farewell luncheon on the last day of the program, I said to the faculty and students that while Aberdeen is called the “Granite City” – a moniker that evokes a cold, hard place – I experienced the City as a very warm and welcoming place, one to which I hope to return in the not too distant future.

Diane at reception
Diane says a few words at the closing reception