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Cara North

Inaugural Global Conference - 2019 HCCH Judgments Convention: Global Enforcement of Civil & Commercial Judgments Choice of Court Agreements: the Choice of Court Convention and the Judgments Convention. Cara North. Hong Kong SAR, China 9 September 2019. Overview.

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Cara North

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  1. Inaugural Global Conference -2019 HCCH Judgments Convention:Global Enforcement of Civil & Commercial Judgments Choice of Court Agreements: the Choice of Court Convention and the Judgments Convention Cara North Hong Kong SAR, China 9 September 2019

  2. Overview • Brief overview of the Choice of Court Convention • The key differences and similarities between the Choice of Court Convention and the Judgments Convention • When and how do these Conventions apply? Some examples • Concluding remarks: why are theseConventions so important for practitioners and international commercial actors?

  3. Choice of Court Convention deals with exclusive choice of court agreements that designate a court or the courts of a Contracting State. • Court-based equivalent of the New York Convention Brief Overview of the Choice of Court Convention

  4. Three basic rules: Article 5 Article 6 Article 8 The chosen court shall hear the dispute Any non-chosen court shall suspend/dismiss proceedings Judgment given by the chosen court shall be recognised and enforced Brief Overview of the Choice of Court Convention

  5. European UnionSigned (2009), ratified (2015) Denmark Acceded (2018) UK Acceded (2018) United StatesSigned (2009); implementation at State or federal level? Canadaimplemented in Ontario (2017) TajikistanConsidering joining Russian FederationConsidering joining UkraineSigned (2016) MontenegroSigned (2017), Ratified (2018) People’s Republic of ChinaSigned (2017) TunisiaConsidering joining MexicoAcceded (2007) SingaporeSigned (2015), ratified (2016) KazakhstanConsidering joining SerbiaConsidering joining Costa RicaConsidering joining BrazilConsidering joining AustraliaImplementing legislation pending ArgentinaConsidering joining New ZealandConsidering joining NB: Boundaries on this map are based upon those used by the UN Cartographic Section. The number of States reflects the Parties as recorded by the Depositary (NL MFA). Neither should be taken to imply official endorsement or acceptance. Status of the Choice of Court Convention

  6. Some Important Similarities of the CoCC and the JC • Objectives (preamble) • Similar exclusions from scope (Arts. 1 and 2), definitions (Art. 3 JC; Art. 4 CoCC), grounds for refusal (Art. 7 JC; Art. 9 CoCC) • Similar architecture and provisions regarding process for recognition and enforcement (Chapter II JC; Chapter III CoCC) • Interim measures of protection not covered (Art. 3(1)(b) JC; Art. 7 CoCC) • Choice of court agreements must be in writing or by other accessible means of communication

  7. The Basic Differences of the CoCC and the JC • Choice of Court Convention • Regulates: one direct ground of jurisdiction, parallel proceedings and the enforcement of judgments, rendered under exclusive choice of court agreements • Judgments Convention • Regulates: recognition and enforcement of judgments (i.e., no direct grounds of jurisdiction), rendered pursuant to a non-exclusive choice of court agreement, including many other indirect grounds of jurisdiction

  8. Choice of Court Agreements under the Choice of Court Convention • Art. 3 – Definition of exclusive choice of court agreements • Presumption of exclusivity • Art.22 – Reciprocal declarations on non-exclusive choice of court agreements

  9. What are exclusive and non-exclusive choice of court agreements? • Exclusive: designates the court(s) of a Contracting State • Non-Exclusive: designates the court(s) of one or more Contracting States or specifies no exclusivity • Asymmetrical choice of court agreements: designates the court(s) of a Contracting State for one party, but the other party may bring proceedings in other courts. Article Article Some examples

  10. Choice of Court Agreement designating Chinese Court (e.g. in Hong Kong) Company in Australia Company in Singapore If proceedings are brought in the courts of Hong Kong then: Article Party brings proceedings in the courts of London The courts of Hong Kongmust hear the case The judgment of the courts of Hong Kong will be recognised and enforced in other Contracting States (e.g., Australia) The courts of London must decline to hear case Article The operation of the CoCC

  11. Choice of court agreements under the Judgments Convention • Two key provisions – • Art. 5(1)(m) – jurisdictional filter – choice of court agreement, other than an exclusive choice of court agreement • Art. 7(1)(d) – ground for refusal of enforcement

  12. Choice of Court Agreement designating Chinese Court (e.g. in Hong Kong) Company in Australia (habitually resident) Company in Singapore (habitually resident) Party brings proceedings in the courts of Hong Kong and judgment is rendered in its favour Enforcement sought in Singapore:judgment not eligible for enforcement because exclusive choice of court agreement, unless another Art. 5(1)(m) filter applies or the Choice of Court Convention applies. Article The operation of the CoCC Example 1: The operation of Article 5(1)(m) (exclusive)

  13. Company in Australia Company in Singapore Choice of court agreement designating Hong Kong Court Proceedings brought in the courts of Singapore Jurisdiction contested based on exclusive choice of court agreement Enforcement of the Singaporean judgment sought in Australia. Australian court may refuse enforcement under Art. 7(1)(d) The operation of the CoCC Example 3: The operation of Article 7(1)(d)

  14. Two Final Points 1. Why does the Judgments Convention only cover non-exclusive choice of court agreements? 2. What if both Conventions apply? • Is there potential for a conflict of treaties? (Art. 23 Judgments Convention)

  15. Foreign Judgments: The Status Quo • Why are these Conventions so important for practitioners and international commercial actors? • Arbitration: preferred method of dispute resolution for cross-border disputes • Enforceability of arbitral award is the most valuable characteristic of international arbitration (Queen Mary 2018 International Arbitration Survey) • NYC (159 States) = ease of enforcement • Recognition and enforcement of foreign judgments: the most significant pitfall of cross-border commercial litigation • (Burford Capital 2016, Unlocking the value of unenforced judgments) Concluding Remarks

  16. Foreign Judgments: The Status Quo • Why are these Conventions so important for practitioners and international commercial actors? • Importance for particular industries: banking and finance industry Concluding Remarks

  17. A Multilateral Solution • 2019 HCCH Judgments Convention&2005 HCCH Choice of Court Convention Thank you! Cara North Legal Consultant, Levy Kauffman-Kohler, Geneva cara.north@lk-k.com A Key Missing Piece

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