Rights statement: This is an Accepted Manuscript of an article published by Taylor & Francis in Journal of Private International Law on 23/08/2017, available online: http://www.tandfonline.com/10.1080/17441048.2017.1348782
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Final published version
Research output: Contribution to Journal/Magazine › Journal article › peer-review
Research output: Contribution to Journal/Magazine › Journal article › peer-review
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TY - JOUR
T1 - Exclusive choice of court agreements: some issues on the Hague Convention on Choice of Court Agreements and its relationship with the Brussels I Recast especially anti-suit injunctions, concurrent proceedings and the implications of BREXIT
AU - Ahmed, Mukarrum
AU - Beaumont, Paul
N1 - This is an Accepted Manuscript of an article published by Taylor & Francis in Journal of Private International Law on 23/08/2017, available online: http://www.tandfonline.com/10.1080/17441048.2017.1348782
PY - 2017/8/30
Y1 - 2017/8/30
N2 - This research paper argues 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. However, intra-EU Hague Convention cases may arguably not permit remedies for breach of exclusive jurisdiction 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 I Recast Regulation. The dynamics of the relationship between Article 31(2) of the Recast Regulation and Articles 5 and 6 of the Hague Convention will also be mapped in this paper. It will be 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. This exceptional nature of the right to sue in the non-chosen forum under the Hague Convention can be effectively reconciled with the Brussels I Recast Regulation's reverse lis pendens rule under Article 31(2). This will usually result in the stay of the proceedings in the non-chosen court as soon as the chosen court is seised. The likely outcome post-BREXIT is that the regime applicable between the UK and the EU (apart from Denmark) in relation to exclusive jurisdiction agreements within the scope of the Hague Convention will be the Hague Convention.
AB - This research paper argues 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. However, intra-EU Hague Convention cases may arguably not permit remedies for breach of exclusive jurisdiction 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 I Recast Regulation. The dynamics of the relationship between Article 31(2) of the Recast Regulation and Articles 5 and 6 of the Hague Convention will also be mapped in this paper. It will be 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. This exceptional nature of the right to sue in the non-chosen forum under the Hague Convention can be effectively reconciled with the Brussels I Recast Regulation's reverse lis pendens rule under Article 31(2). This will usually result in the stay of the proceedings in the non-chosen court as soon as the chosen court is seised. The likely outcome post-BREXIT is that the regime applicable between the UK and the EU (apart from Denmark) in relation to exclusive jurisdiction agreements within the scope of the Hague Convention will be the Hague Convention.
KW - private international law
KW - conflict of laws
KW - international commercial litigation
KW - Hague Convention on Choice of Court Agreements
KW - Brussels I Recast Regulation
KW - exclusive jurisdiction agreements
KW - choice of court clauses
KW - anti-suit injunctions
KW - parallel proceedings
KW - lis pendens
KW - Brexit
KW - disconnection clauses
KW - EU law interpretation
KW - treaty interpretation
U2 - 10.1080/17441048.2017.1348782
DO - 10.1080/17441048.2017.1348782
M3 - Journal article
VL - 13
SP - 386
EP - 410
JO - Journal of Private International Law
JF - Journal of Private International Law
SN - 1744-1048
IS - 2
ER -