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.

Brexit and English Jurisdiction Agreements: A Look into the Post-Referendum Legal Landscape

This blog is by Dr. Mukarrum Ahmed from the University of Aberdeen’s Centre for Private International Law

The initial shock at the UK’s referendum vote must be replaced by a reasoned consideration of how best to respond in an uncertain situation. Will it really happen? When will it happen? Will the continuing EU play hardball in negotiations or will it seek to ensure that the UK becomes a good neighbour? What will the post-Brexit UK and EU look like? One decision for those entering into cross border commercial contracts in the post-referendum legal landscape is what to do about an English jurisdiction provision in the contract. The referendum result hasn’t itself changed anything legally, but it may be necessary to invoke these jurisdiction provisions of a contract in two or more years’ time, when the legal framework might be different.

Jurisdictional Principles

The jurisdiction of the English courts and the courts of other EU Member States in civil and commercial matters is currently governed by the Brussels I Regulation (Recast) or the Recast Regulation (EU Regulation 1215/2012). The Regulation provides that a choice of jurisdiction by the parties should be upheld and that judgments given by the courts of one Member State should be enforced in all other Member States. After Brexit, the Recast Regulation will in all probability cease to apply to the UK, which has led some lawyers in continuing EU Member States to promote the idea that commercial litigation that might have traditionally come to the English courts should instead be diverted to the other emerging European centres of international litigation. English lawyers are naturally perturbed by such a prospect. What the post-Brexit jurisdictional and enforcement landscape will look like is uncertain. Lawyers can debate enthusiastically whether judgments given in proceedings commenced before Brexit will continue to be enforceable after Brexit, whether the 1968 Brussels Convention will be restored, whether the pre-Brussels Convention bilateral treaties between the UK and individual Member States will revive, whether the UK has a right to adhere to the Lugano Convention or, if not, whether one or more of the existing Contracting States will block the UK’s doing so. Interesting though those debates will be, they do not reduce the uncertainty and offer scant help to those who must make a decision now.

The Starting Point on Jurisdiction

The first question is what the jurisdiction agreement in any particular contract is trying to achieve. If a fundamental objective of the jurisdiction clause is to provide a judgment that will be enforceable throughout the EU, then the uncertainties of the post-referendum world come into play (as illustrated in this earlier post by Dr. Jon Fitchen). There is a real risk that, with the departure of the Recast Regulation and the uncertainties over Lugano and other issues, an English judgment will not be readily enforceable in the continuing EU and vice versa. Possible responses where enforceability of a judgment in the continuing EU is an important factor are discussed below.

There are, however, many reasons for a choice of jurisdiction save for the enforceability of the resulting judgment within the continuing EU. For example, the party against whom enforcement is likely to be required may not have any accessible assets in the EU. Most obviously, the party might have assets in the UK or otherwise outside the EU, in which case the issues will be the same pre-Brexit as post-Brexit. In some instances, enforceability might not be a major issue. For instance, a party may have sufficient security against which to discharge its counterparty’s obligations within the jurisdiction. Or a party may conclude that it is more likely to be the sued rather than sue the counterparty. Or enforcement risk may simply not be a big factor for the particular counterparty. In these situations, a jurisdiction clause may fulfil a more defensive role of ensuring that the party can only be sued in a court in which it has confidence. If so, again the considerations may not have changed significantly as a result of the referendum vote. Post-Brexit, a jurisdiction clause in favour of the English courts may not require courts in EU Member States to defer to the English courts in quite the same way or for the same reasons as now, but the counter may be that, if so, the English courts will, contrary to the current position, be able to grant anti-suit injunctions to restrain a party from pursuing proceedings in an EU court. A party with any business, presence or assets in the UK cannot afford to ignore an injunction.

EU Enforceability: Solutions

If enforceability of a judgment throughout the continuing EU is important, there are four solutions in circumstances where, pre-referendum, jurisdiction would have been given to the English courts.

First, give jurisdiction to the courts of an EU Member State or a Lugano Convention Contracting State (Norway, Iceland and Switzerland). This depends upon being comfortable with proceedings in that court, including as to its procedures, costs, speed and outcomes. This is already sometimes done in, for example, security agreements where the security in question is located in another EU Member State.

Second, give non-exclusive jurisdiction to the English courts. This cautious approach hedges the parties’ choice of jurisdiction and allows the position to be reconsidered at the time when legal proceedings are commenced. If at that time enforcement remains important and an English judgment is enforceable in the EU, then the English courts can be used; if, however, an English judgment is not enforceable in the EU, it will allow the use of other courts. A variant of non-exclusive jurisdiction clauses is the asymmetric or unilateral jurisdiction agreement, which is commonly used in cross border finance contracts. This binds one party to sue exclusively in the primary non-exclusive forum, but allows the other party to commence proceedings in that court or in any other court of competent jurisdiction. The French Cour de cassation has cast some doubt on the validity of these clauses under Article 23 of the Brussels I Regulation in Mme X v Rothschild (26 September 2012) and Article 23 of the Lugano Convention in ICH v Credit Suisse (25 March 2015). However, the position has been somewhat ameliorated by the most recent Cour de cassation decision in Apple Sales International v eBizcuss (7 October 2015). Moreover, doubt as to a matter of EU law may be less significant if the UK is outside the EU because the English courts have traditionally enforced these clauses. It could, however, affect EU Member States’ courts’ approach to the jurisdiction clause, but that is in any event a matter of some uncertainty until finally resolved by the Court of Justice of the European Union.

Third, arbitration is a possibility. Arbitration is already commonly used if enforcement is important and the counterparty has assets in a location where an English judgment is not enforceable because of the extensive reach of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. All EU Member States are parties to the New York Convention, which provides for the enforcement in participating states of an arbitral award given in another participating state. An arbitration seated in a participating state, whether the UK, a continuing EU Member State or elsewhere, should therefore be able to give an award enforceable throughout the EU.

Fourth, parties could continue with whatever their current policy is. The massive uncertainties surrounding what Brexit will bring could be treated as meaning that the risks of change are as great as the risks of no change.

EU Enforceability: The Hague Convention on Choice of Court Agreements

There is another possible solution to the problem of enforceability of a judgment throughout the EU. This is to give the English courts exclusive jurisdiction. The potential benefits of this route arise because the EU is a party to the Hague Convention on Choice of Court Agreements. In addition to the EU, Mexico and most recently Singapore have signed and ratified the Convention, which is therefore currently of limited significance in global terms. The Convention does, however, provide that all Contracting States must give effect to exclusive jurisdiction agreements (Articles 5 and 6) and enforce the resulting judgment given by the chosen court (Article 8). The UK is not currently an individual Contracting State to the Convention because the Convention’s subject matter falls within the exclusive competence of the EU. There is divided academic opinion on the issue whether the UK is bound by this international treaty post-Brexit without any need for the UK to ratify the treaty afresh as it might be argued that the UK is only bound by the treaty while it is a Member State of the EU. Assuming the UK would not be bound, the UK would still be entitled to sign and ratify the Convention in order to bring it into force immediately on the UK’s leaving the EU or soon afterwards; the consent of the existing parties is not required. If the UK were to do so, a judgment given by an English court that has taken jurisdiction under an exclusive jurisdiction clause will again be enforceable throughout the EU. This position is not, however, without potential transitional wrinkles. Article 16 of the Convention states the Convention applies to exclusive jurisdiction agreements concluded after its entry into force for the state of the chosen court and that the Convention does not apply to proceedings instituted before its entry into force in the state of the court seised. The Convention has, however, already entered into force in the UK because of the EU’s ratification of the Convention.

Suppose that a contract contains an English exclusive jurisdiction clause but that, post-Brexit, a court in an EU Member State is seised of proceedings falling within the scope of that clause. What will the EU Member State’s court do, assuming that the Hague Convention on Choice of Court Agreements is not applicable?

Post-Brexit, so far as the continuing EU is concerned the English courts will (subject to any future contrary arrangements with the EU) be in the same position as any other courts outside the EU. The commercial expectation might be that the courts of EU Member States would give effect to the parties’ wishes, but it is not entirely clear that this will necessarily be the case. Article 33 of the Recast Regulation provides that courts in EU Member States may stay proceedings in favour of courts outside the EU if three conditions are met: first, the non-EU court was first seised; secondly, the non-EU court can give a judgment capable of enforcement in the EU Member State in question; and, thirdly, a stay is necessary for the proper administration of justice. If these three conditions are met, then the court in the EU Member State can stay, and might generally be expected to stay, proceedings in favour of the court outside the EU. But what if any of these conditions is not met (for example, because the court in the EU Member State was seised first)? It is arguable that, despite the fact that the agreement between the parties has been broken by one party starting proceedings in an EU Member State’s courts, the courts of EU Member States cannot stay their proceedings in favour of the non-EU court. Before Article 33 was added to the Recast Regulation, there was no explicit provision addressing the position of non-EU courts. There is evidence of some Member State court’s practice which gives effect to jurisdiction agreements in favour of non-EU courts under the guise of giving ‘reflexive effect’ to the Regulation’s provisions regarding jurisdiction clauses. However, as the Recast Regulation now specifically addresses the position of non-EU courts, the convenient legal fiction of the doctrine of reflexive effect may be harder to justify in principle.

Ultimately, the Court of Justice of the European Union will have to determine the most appropriate approach in these circumstances. Even if the courts of an EU Member State consider that they have no power to stay proceedings in favour of the English courts despite an exclusive jurisdiction clause in favour of the English courts, the English courts may not be without a pragmatic remedy. Under the Recast Regulation, the English courts cannot grant an anti-suit injunction to restrain a party from pursuing proceedings in the courts of another EU Member State bought in breach of the jurisdiction agreement (Case C-159/02 Turner v Grovit [2004] ECR I-03565). However, if the UK is no longer an EU Member State, its mutual trust constraints will no longer apply and the English courts would again be free to grant, and would generally grant, anti-suit injunctions ordering parties to stop legal proceedings brought in breach of contract. Failure to obey an injunction would constitute contempt of court, which could lead to a fine, imprisonment and, ultimately, sequestration of assets. A party with any presence or assets in the UK would have to comply with the injunction or reconcile itself to the loss of those assets. If, contrary to the assumption made above, the Convention was applicable, the courts of an EU Member State that are seised of proceedings in breach of an exclusive jurisdiction agreement should defer to the English courts according to Article 6 of the Convention. Moreover, the Convention’s system of qualified mutual trust may also permit the use of anti-suit injunctions, the damages remedy for breach of exclusive jurisdiction agreements and anti-enforcement injunctions where such relief furthers the objective of the Convention.