Why we should sign up to the Hague Convention on choice of court agreements

If the UK exits the EU without concluding any further agreement as to how jurisdiction should be allocated, then the obvious course of action would be for the UK to sign up to the Hague Convention on Choice of Court Agreements. The EU is already a signatory to this on behalf of the Member States.

This has two immediate advantages. First, the Convention provides that Contracting States shall give effect to exclusive choice of court agreements; such agreements will be deemed to be exclusive unless the parties have expressly agreed to the contrary. This, accordingly, effectively reproduces the effect of the Brussels Regulation Recast in relation to exclusive choice of court agreements.

Second, and perhaps more importantly, the Convention provides that the courts of Contracting States other than the chosen court must suspend or dismiss proceedings in such courts in favour of the chosen court.

This would therefore prevent the revival of the so-called “Italian Torpedo”, ie the bringing of proceedings in a non-chosen court in order to prevent, delay or complicate the bringing of proceedings in the chosen court.

Accordingly, in relation to agreed exclusive jurisdiction clauses for commercial parties, the Hague Convention would very much mirror the terms of the Brussels Regulations Recast. If the UK does go down this route (and even if it does not), it would be sensible for parties to ensure that they agree, in writing, jurisdiction clauses which designate the courts of just one Contracting State for all disputes, so that these will qualify as being exclusive under the Convention.