A Matter of Good Form: The (Downsized) Hague Judgments Convention and Conditions of Formal Validity for the Enforcement of Forum Selection Agreements

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INTRODUCTION

Can the Hague Judgments Convention be saved through radical downsizing? It has been more than ten years since the Hague Conference on Private International Law (Hague Conference) first officially began exploring the possibility of drafting a global convention on jurisdiction and the enforcement of foreign judgments in civil and commercial matters. (1) It has been more than four years since the Conference presented its preliminary draft convention, (2) itself modeled largely on the European Community's 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Brussels I). (3) However, this preliminary draft convention was rejected as unacceptable by the American delegation, (4) and a subsequent "interim text" (5) indicated that Hague Conference delegates remained far from consensus on a wide range of issues. (6)

In the hopes of salvaging a portion of this decade of work, a Hague Conference informal working group recently proposed turning the draft convention's provisions on business-to-business (B2B) forum selection agreements (FSAs) into a stand-alone international "choice of court" convention. (7) Such a convention would at least partially supplant current national and state laws that may unduly restrict the enforceability of private agreements that grant a given court or courts exclusive jurisdiction over future contractual disputes. (8) Although an FSA convention is clearly a less ambitious project than the Judgments Convention originally anticipated, the need for such a Convention in international commerce is real. (9) For example, although national courts generally freely enforce international arbitration agreements, many of those same courts are more hesitant to enforce equivalent FSAs. (10) This hesitation is especially curious because FSAs serve the same purpose as international arbitration agreements--they allow the parties to a contract to reduce, if not to eliminate, the risk of being hauled before an unknown and inconvenient court that would apply unfamiliar or unfavorable laws. Indeed, forum selection and arbitration agreements differ only in one respect: the former designate public forums, while the latter designate private forums. As scholars on both sides of the Atlantic have suggested, and as the United States Supreme Court has implied, this difference should not justify different standards of enforcement. (11)

This Note analyzes one area of the current "choice of court" proposal that has received little critical attention by Hague Conference delegates: conditions of formal validity. (12) Conditions of formal validity encompass specific, tangible, external manifestations of consent to an FSA, or to the content of that agreement, in the absence of which the seised court (13) will refuse enforcement. (14) These conditions may include rigid standards of proof involving the necessity and content of a "writing" containing or evidencing the FSA. (15) Such conditions are designed to assure that the parties have actually consented to a given FSA.

Current Hague Conference proposals incorporate provisions on formal validity that largely mirror provisions in the European Community's 1968 Brussels Convention (16) and its successor instrument, Council Regulation 44/2001 (Brussels II). (17) As such, this Note argues that by replicating those provisions, Conference delegates are close to repeating one of the fundamental mistakes of the preliminary draft judgments convention: an overreliance on a European legal text that is a "thoroughly inappropriate model" for a "world-wide convention." (18)

In arguing for an FSA convention that goes beyond current proposals, this Note proceeds as follows. Part I introduces the United States and European Union FSA regimes, emphasizing in particular the extent to which United States and European Union law generally admit that B2B FSAs are enforceable. Part II analyzes the conditions of formal validity that the European Union regime imposes, comparing those conditions to formal conditions imposed under United States law. …