The 2005 Hague Convention on Choice of Court Agreements: Commentary and Documents by

Ronald A. Brand; Paul M. Herrup

Review by: Paul R. Dubinsky
The American Journal of Comparative Law, Vol. 57, No. 3 (SUMMER 2009), pp. 745-750
Published by: American Society of Comparative Law
Stable URL: http://www.jstor.org/stable/25652662 .
Accessed: 18/09/2014 09:43
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .
http://www.jstor.org/page/info/about/policies/terms.jsp
.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact support@jstor.org.
.
American Society of Comparative Law is collaborating with JSTOR to digitize, preserve and extend access to
The American Journal of Comparative Law.
http://www.jstor.org
This content downloaded from 103.231.241.233 on Thu, 18 Sep 2014 09:43:59 AM
All use subject to JSTOR Terms and Conditions
Book Reviews
Ronald A. Brand
and Paul M.
Herrup,
The 2005 Hague Conven
tion on
Choice
of
Court Agreements: Commentary
and
Documents
(Cambridge University Press,
2008)
Adventures
in Treaty Interpretation
Reviewed
by
Paul R.
Dubinsky*
The
Hague
Convention
on
Choice of Court
Agreements
was
opened
for
signature
and ratification in June
2005,
at the close of the
twentieth session of the
Hague
Conference
on
Private International
Law. The convention arrived without the fanfare that
might
have
been forecasted back in
1996,
when the
Hague
Conference announced
a return to the
subject
of
global recognition
of civil
judgments
after
a
disappointing attempt
decades earlier.1 But if
a
decade of
negotia
tions
produced
a
final text that
was
modest in
scope
compared
to the
ambitious
project
that had been launched in the
1990s, many
still
saw reason to celebrate. The
project
to
produce
a
broad
judgments
convention had been
on
the brink of failure in 2001. Several
coun
tries, including
the United
States,
had insisted that the
project
be
scaled back. This meant
putting
aside the ambitious
goals sought by
some:
(1)
jurisdictional
rules that would
govern
a
wide
variety
of
transnational
disputes;
(2)
an
effort to limit concurrent
jurisdiction,
parallel litigation,
and unilateral forum
shopping
in international lit
igation;
and
(3)
requiring
national courts to
cooperate
with one
another in the most sensitive
cases?disputes
in which
jurisdiction
is
contested,
the law to be
applied
differs
greatly
from
one
country
to
another,
and the amount of
damages
that would be awarded in Coun
try
A differs
by
orders of
magnitude
from that in
Country
B.
With these
grand goals
off the
table,
what was left? For those
disappointed
in the end result of a decade of
negotiations,
the answer
is "not
enough."
For
them,
what has
emerged
is a
treaty
that
applies
in
only
a small subset of
cases,
that does little to narrow
the
large
differences in
procedural
law that exist from
country
to
country,
and
*
Associate Professor of
Law, Wayne
State
University
Law School.
1. See Convention
on the
Recognition
and Enforcement of
Foreign Judgments
in
Civil and Commercial Matters and
Supplementary Protocol,
done Feb.
1, 1971,
avail
able at
http://www.hcch.net/index_en.php?act=conventions.text&cid=78.
This
convention has entered into force
only among
four countries:
Cyprus, Kuwait,
the
Netherlands,
and
Portugal.
745
This content downloaded from 103.231.241.233 on Thu, 18 Sep 2014 09:43:59 AM
All use subject to JSTOR Terms and Conditions
746 THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol.
57
that does not address the
large
incentives that
plaintiffs
have to fo
rum
shop
in cases not
governed by
forum selection
agreements.
But
for
supporters
of the Choice-of-Court
Convention,
the
glass
is at least
half full: An
important
basis of
jurisdiction (jurisdiction by
consent)
is
now more
deeply
established in international law than
previously;
a
new
pathway
for transnational
judicial cooperation
has been elevated
to
treaty status;
and
a
litigation counterpart
to the New York Con
vention will be available
once
the convention enters into force. Four
years
have
now
passed
since the 2005
diplomatic
conference in the
Hague.
With the benefit of
hindsight,
what are we to make of these
opposing
views of what
transpired
from 1996-2005?
Ronald Brand's and Paul
Herrup's
The 2005
Hague
Convention
on
Choice
of
Court
Agreements: Commentary
and Documents is an
invaluable resource for
anyone
interested in this last
question.
It is
also well suited to several kinds of readers. For those who will
par
ticipate
in the ratification
process
either in the United States
or
elsewhere,
the work is an
excellent resource for
determining precisely
what
obligations
are to be undertaken. For
practicing litigators,
the
book is a
deep
cistern from which to draw
arguments
in favor of rec
ognizing
or
withholding
the
recognition
of
foreign judgments
in
particular
cases.
For
lawyers
who draft international business
con
tracts,
the book offers
guidance
on how to draft
an
effective forum
selection
clause, especially
for U.S.
lawyers
unfamiliar with
nuances
relating
to
exclusivity, preliminary relief,
and other matters. For
judges
not well versed in transnational
procedural law,
the book
lays
out the convention's
background,
its travaux
preparatories,
and its
relation to other international
instruments,
such
as
the
European
Union's Brussels I
Regulation.
For
scholars,
the book has
yet
another
dimension:
interspersed
with its discussion of the ins and outs of the
convention's
thirty-four articles,
one finds
thoughtful
reflection
on
the
relationship
between
comparative
law and
private
international
law in the context of
drafting
multilateral treaties.
The
organization
of the book is clear and
helpful.
Part I is an
overview of the convention's structure and its tortuous
history dating
back to
1992,
when the United States
proposed
the
project, through
years
of ambitious and sometimes contentious
negotiations
in the
late 1990s on the
subjects
of
adjudicative jurisdiction, recognition
of
judgments,
and the
meaning
of due
process,
to the much scaled back
text that
we now
have. Part
II,
the
core
of the
book,
marches
through
the
treaty,
article
by article,
from the definition of the convention's
scope
all the
way
to the mechanics of
entering
declarations and
reser
vations.
Along
the
way,
countless
potential ambiguities
are
thoughtfully
considered. In Part
III,
the reader will find
some useful
references:
(1)
a
concise
summary
of state and federal
practice
in the
United States with
respect
to forum selection clauses and the
recog
nition and enforcement of
foreign judgments;
(2)
an overview of work
currently being
done
by
the uniform law commissioners and others
on
judgment recognition,
and
(3)
a short section
comparing
the Choice
of-Court Convention with the New York Convention. The
appendices
contain the
complete
text of the
convention,
its 2007
explanatory
re
This content downloaded from 103.231.241.233 on Thu, 18 Sep 2014 09:43:59 AM
All use subject to JSTOR Terms and Conditions
2009]
BOOK REVIEWS 747
port,
and relevant documents
produced during
the
project's early
incarnation,
before it was scaled back.
Taken
together,
these various
parts
of the book make it well
suited for
many
different
readers, including
one inclined to consider
one
question
in
particular
that weaves its
way
throughout
the book:
what
are we to make of the
large disparity
between the
expansive
goals
articulated in 1996 and the modest final
product
delivered in
2005? This
question,
variations of which
appear
in
Chapter
One's
"Context and
History
of the
Hague Negotiations,"
in
Appendix
B's ex
cerpts
from the
explanatory report prepared
in connection with the
1999
preliminary
draft2
(the
"Nygh-Pocar Report"),
and in footnotes
and bits of text scattered
throughout
the
book,
is more
intriguing
and
complicated
than it
might
first
appear. Initially
one
might
not be in
clined to make much of the fact that the 2005 Choice-of-Court
Convention is
quite
different in
scope
from the
treaty
that
a
special
commission set out to draft in 1996. After
all,
it is not hard to
point
to
other treaties for which the final text differs in a
major
way
from the
one
originally planned.
What one often does in
interpreting
such
treaties is discount
heavily
any
drafts
or
preparatory
documents
em
bodying
the
early design,
or even
effectively
remove them
altogether
from what one considers the
operative
travaux.
Brand and
Herrup
maintain that with the Choice-of-Court Con
vention,
such
a
solution is
unsatisfactory.
Rather the task is
"whether criteria
can
be articulated which will
respect
the fundamen
tal differences between the 2001 and 2005
projects
and
texts,
while
finding
an
appropriate
use for the earlier work"
(p.
32).
The
odyssey
by
which the
original project
on
Jurisdiction and the Effects of
Judg
ments in Civil and Commercial Matters became the Choice-of-Court
Convention involved
many
complications
which
collectively
were
quite
unusual.
First,
the status of
an
early preliminary
draft
conven
tion
was never
fully
clarified. That
document,
which
was
provisionally adopted
in 1999 and embodies the
project's original
goals,
was never
renounced.
Indeed,
it was
referred to
repeatedly
in
the
subsequent negotiations
and referenced in the 2007
explanatory
report
that
accompanies
the 2005 final text.
Second,
if it is
always
dicey
to determine the intent of
a
large group
of
people
or a
large
number of
delegations, doing
so is
doubly
hard when the
membership
of the
body
is in a state of flux. When the United States
originally
proposed
that the
Hague
Conference undertake
a
judgments
conven
tion,
thirty-seven
countries were
member states. From 1992 to
2005,
membership nearly
doubled
as
twenty-eight
countries
joined
the or
ganization. During
this
period,
many
negotiating
rounds
were
held,
some of them formal and scheduled well in
advance,
but some
of them
informal with
many delegations
not
attending.
Second,
not
just
the size of the
organization changed.
In some
respects
its character
changed
as well
during
this time
period.
The
2.
Preliminary
Draft Convention on Jurisdiction and the Effects of
Judgments
in
Civil and Commercial
Matters, adopted provisionally by
the
Special Commission,
Hague
Conference
on
Private International
Law, Working
Doc. 241
(June 18, 1999).
This content downloaded from 103.231.241.233 on Thu, 18 Sep 2014 09:43:59 AM
All use subject to JSTOR Terms and Conditions
748
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol.
57
Hague
Conference became less
an
organization
of which the
typical
member
was a
European country
with
a
well
developed legal system,
a
longstanding
democratic
regime,
and a
high
GDP
economy.
New
entrants included
young democracies,
non-democratic states without
a
history
of
independent judiciaries,
countries without much of
a
track record of
entering
into and
abiding by private
law
treaties,
and
countries whose incentive to
join may
have had
as
much to do with
building
credentials for international
lending
institutions as
with
an
interest in the
organization's
work
product. Third,
the
longstanding
voting
rules of the
sponsoring organization
were
altered in the middle
of the
negotiations.
Whereas the 1999
Preliminary
Draft
was
the
product
of
majority voting,
like
many Hague
conventions before
it,
a
letter in 2000 from the chief U.S.
negotiator
to the
Secretary
Gen
eral3 ushered in consensus
decisionmaking
for the
negotiations
that
took
place
from 2002 to 2005.
Finally, perhaps
the most
far-reaching change
that occurred
from 1992 to 2005 concerns
the
European
Union. Until the
1980s,
the
European Community
had little role in the
negotiation
or
implemen
tation of
Hague
Conference treaties because
no
competence
existed at
the
European
level to
legislate
in the
area of
private
international
law. With the
Treaty
of
Amsterdam,
the EU
acquired
substantial in
ternal
legislative competence
in the
field, resulting
in much
legislative activity. Alongside
this
change
in
competence
came
changes
in the
European
Commission's level of
participation
at the
Hague Conference,
from
non-participant,
to
passive observer,
to ac
tive
participant,
to
full-fledged
member of the
organization.
As
a
result,
while the
negotiations
in the
Hague
were
taking place,
EU
member states were
losing
the
independence they
had
long enjoyed
in
Hague
Conference
negotiations,
and
a
body
of internal EU
legislation
was
growing,
to which all EU member states had to adhere.
In
short, interpreting
the Choice-of-Court Convention
can
be
a
challenging
exercise not
only
because there were
"major changes
in
[the]
structure and substance of the
project
between 1999 and 2005"
(p.
32).
These
changes
in substance were further
complicated by
a
drawn out
timeframe,
a
shifting
cast of
characters,4
and a need for
the
organization's
most
longstanding
members to
participate
in the
shadow of
developments
in the EU. All the
while,
stacks of written
materials
(e.g.,
convention
drafts, working documents, scholarly
studies,
summaries of the
proceedings)
were
accumulating.
Some of
these documents
were
created at a time when
majority voting
was
the rule and ambitious
goals
were on
the table. What are we to do
with such materials now? Should
we write them off
as
outdated and
irrelevant? Or do some of these documents
embody understandings
or
3. Letter from
Jeffrey
D.
Kovar,
Assistant
Legal
Adviser for Private Int'l Law
(U.S.)
to J.H.A. van
Loon, Secretary-General, Hague
Conference
on Private Int'l Law
(Feb. 22,
2000).
4. As the authors
note,
"There
may
have been situations where
key personnel
were not on the floor to reiterate"
(p
30)
statements made at
early negotiating
ses
sions and the
participation
of some countries was "late or
sporadic" (p.
32).
This content downloaded from 103.231.241.233 on Thu, 18 Sep 2014 09:43:59 AM
All use subject to JSTOR Terms and Conditions
2009]
BOOK REVIEWS
749
general principles
that should be consulted when
we are
called
upon
to resolve
ambiguities
in the final document?
To their
great credit,
Brand and
Herrup
address these
questions
head
on.
Especially
in
chapter
3
("Interpretation
of the
Convention"),
they
go
so far as to
provide
almost
a
theory
of how one
should inter
pret
a
treaty
with such a
complex negotiating history.
The issues
are
intriguing:
Can a
discussion that took
place
in a
negotiating
session
in 1997 be offered as evidence of
a consensus on a matter
arising
under the 2005
treaty
even
though
many
countries became members
of the
Hague
Conference after 1997? Did late
joining
countries have
a
duty
to scour
the minutes of the
early negotiating
sessions and belat
edly register
their
objections,
even
though
the minutes are not
actually
verbatim records of what took
place?
Was it not a
fair as
sumption by
a
late entrant that discussions that occurred before the
project changed
course would not be
binding
on
anyone?
Even after
2002,
for a final
treaty
created
by
consensus rather than
provision
by-provision voting,
where does
one look for the
necessary
evidence of
consensus
when
one is confronted with
a
textual
ambiguity?
Of what
value,
for
example,
is the 2007
explanatory report,
which was written
by co-reporters
Trevor
Hartley
and Masato
Dogauchi,
who
accepted
some
suggested
revisions to their initial draft but
rejected
others?
Can
any part
of such
a
report
be used to
interpret
a
treaty
which is
supposed
to be a consensus
document? Does it make sense to have
a
look at the
key preliminary
interim draft circulated in
1999,
at least
for
an
understanding
of a term of art that
appears
in both the
prelim
inary
draft and in the final
treaty?
This is
just
a small
sample
of the conundrums to be considered.
In
response,
Brand and
Herrup
offer
many
useful
insights
and sensi
ble solutions. For
example, they
stress that with a consensus
document
one
should stick to
interpretations
that
are
"rooted
solidly
in the text"
(p.
26)
because the difficulties of
finding
evidence of con
sensus in extra-textual
sources can
be formidable.
They argue
that if
a
country's objection
to a term or
textual
interpretation
was
incorpo
rated into the
August
2000
Nygh-Pocar Report,
then that
objection
should be deemed to be
preserved
for
purposes
of
interpreting
the
2005 final
document,
even if the
objection
was not raised a
second
time
(p.31).
Their solutions to some
issues,
such as
what to do about
late-arriving delegations,
are
ingenious: any
claim of consensus
based
on sources outside the final convention text or
authoritative
statements at the
plenary
sessions must be "consistent with
general
private
international law
understandings
of the law in the
specific
subject
area"
(p.
32)
in order to
prevent
unfair
surprise
to those coun
tries who
joined
the
negotiations
late or
whose attendance
was
sporadic.
At other times
they
walk
a
very
fine
line;
it is "reasonable to
expect
that failure of consensus must be established with
something
in the record"
(p. 31),
but
a
country's
silence at the
plenary
of the
diplomatic
conference should not
automatically
be construed as
de
feating
that
country's
claim that no consensus was
reached with
respect
to an
issue
(p.30).
In all these instances and
others,
the book
This content downloaded from 103.231.241.233 on Thu, 18 Sep 2014 09:43:59 AM
All use subject to JSTOR Terms and Conditions
750
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol.
57
has the feel of two authors who were
deeply
involved with the
project
as
members of the U.S.
delegation.
If there is
anything disappointing
about the
book,
it
may
be its
title. To
some,
"commentary
and documents"
may suggest
a
highly
technical reference work suited at
present
to
just
a
small circle of
readers. That is not the case. To be
sure,
Brand and
Herrup's
effort
will be of
great
value to the intimate circle of U.S.
lawyers
involved in
the ratification
process
and in
drafting implementing legislation
in
the
hopes
that the Obama administration will send the
treaty
to the
Senate sometime soon. But it would be
a
shame if
people
outside this
circle
were to conclude that the book
can
gather
dust until such time
as the Choice-of-Court Convention enters into force. Brand and Her
rup
offer
insightful
discussion of
many
thorny questions
in
private
international law.
They
make skillful
use of
comparative
law in shed
ding light
on some
of the
compromises
that were
reached.5
They give
vivid illustrations of some of the
complications
of modern multilateral
treaty negotiations involving
federal states and
regional organiza
tions. The book is recommended
reading
for
anyone
curious about the
complexities
of modern multilateral
treaty negotiations,
and it should
be considered
as a
supplementary
text for those
teaching
courses in
comparative law,
conflict of
laws,
or
international law.
Amalia D.
Kessler,
A Revolution
in
Commerce: The Parisian
Merchant Court
and the Rise
of
Commercial Society
in Eight
eenth-Century France
(Yale
University Press,
2008)
Reviewed
by Emily
E. Kadens*
With this
book,
Amalia
Kessler,
Professor of Law and Helen L.
Crocker
Faculty
Scholar at Stanford
University,
has made an
impor
tant contribution to the
history
of commercial law.
Deploying
an
impressive
arsenal of
primary
sources,
Kessler
provides
a detailed
study
of the Parisian Merchant Court in the
eighteenth century.
In
the
process,
she offers
more
evidence about the inner
workings
of a
commercial court and the
legal relationships
of merchants than
any
of the recent
spate
of works
debating
the existence of the so-called
"law merchant."
The
theory
of the law merchant holds that
during
the
pre-mod
ern
period
merchant
groups
were
completely self-regulating. They
governed
their transactions
through
uniform and universal customs
developed
over
years
of commercial
practice. Disputes
were
adjudi
cated
by experienced
merchants chosen
by
those communities and
5.
See,
for
example,
their discussion of Article 11 of the convention and whether
the court in which
recognition
is
sought
need
recognize
the entire
damage
award en
tered
by
the court in which
litigation
was
initially brought (pp.
126-29).
*
Assistant Professor of
Law, University
of Texas at Austin.
This content downloaded from 103.231.241.233 on Thu, 18 Sep 2014 09:43:59 AM
All use subject to JSTOR Terms and Conditions