Enhancing party autonomy under the Hague Convention on Choice of Court Agreements 2005: Comparative analysis with the 2012 EU Brussels Recast Regulation and 1958 New York Arbitration Convention

Abstract

The Hague Convention on Choice of Court Agreements 2005 [‘HCCCA’] is the first and sole global treaty giving effect to party autonomy through uniform rules on recognition and enforcement of exclusive jurisdiction agreements and resulting judgments in international litigation. The importance of the instrument is arguably increasing with the anticipated width of ratifications. Notably, the contribution of the Convention to the continuation of judicial cooperation post-Brexit expands its momentousness.
This research critically analyses the effectiveness of the HCCCA in providing party autonomy and suggests possible ways to influence its potential success. By examining the remaining gaps in the treaty, the study tries to enhance the provision of party autonomy and encourage the states to join the Convention.
The thesis reveals that as a vital PIL instrument, the Convention frames party autonomy as a product of an evolutionary process and internationalisation of freedom of contract, furthermore, validates the liberalistic and paternalistic aspects of the principle. It presents key elements of the HCCCA supporting the principle and generally acclaims it as the universal mechanism giving fresh life to international litigation and choice of court agreements. Furthermore, it predicts the expanding influence of the HCCCA and particularly emphasises interaction with the
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complementary Hague Judgments Convention 2019 in enhancing parties’ choices and levelling the playing field in international dispute resolution.
Since the Hague Conference aimed to learn lessons from the successful Brussels regime and provide guarantees for jurisdiction agreements similar to what the New York Arbitration Convention provided for arbitration agreements, the study compares and associates equivalent perspectives of the three instruments. Based on these assessments, the research identifies strengths and possible weaknesses of the HCCCA, further draws criticisms on inconsistencies and lack of uniformities.
The thesis seeks several proposals for legislative, institutional, practical, and political measures to enhance effectiveness and more reliable accommodation of the party autonomy principle. It encourages the Hague Conference to revise the Convention preferably by supplementary protocols, establish special commissions and expert groups together with the EU Commission and UNIDROIT, and to endeavour for the institution of the international Hague Court for achieving harmonised interpretation and consistent application of the treaty as well as avoiding considerable ambiguities and non-uniformities arising out of various national laws. It also argues that the expansion of judicial cooperation and economic relations is of significant importance in attaining real success through wider ratifications. In this regard, enlargement of the political ties and increased collaboration between the national authorities play a vital role in enhancing the choice of court agreements and promoting the effectiveness of the HCCCA.

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ORCID for Uta Kohl: orcid.org/0000-0002-8616-9469

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