Posts Tagged judgments convention

The provisional text of the Hague Judgments Convention.

The representatives at the Diplomatic Conference at the Hague Convention have issued a provisional text of the Convention here. I am short of time to post a quick scan of the Convention – see some of my earlier posts on same. Also, since the Convention has taken on the format of the Brussels regime, it is of course quite an exercise even just to give a quick overview.

Of interest is that Jane Holliday posted a summary of key positive takeaways by prof Paul Beaumont, who was heavily involved in the drafting i.a. as a representative of the EU. These include the room for asymmetric choice of court (not covered by the Hague choice of court Convention and crucial for many common law jurisdictions); and the blend between the US and the EU regime for forum contractus: Article 5(g):

‘the judgment ruled on a contractual obligation and it was given by a court of the State in which performance of that obligation took place, or should have taken place, in accordance with

(i) the agreement of the parties, or (ii) the law applicable to the contract, in the absence of an agreed place of performance,

unless the activities of the defendant in relation to
the transaction clearly did not constitute a purposeful and substantial connection to that State.

Of note of course is also the carve-out for intellectual property and of ‘unilateral’ sovereign debt restructuring, but also of defamation and of privacy.

Much analysis no doubt to follow, as are complications in reaching a unified interpretation of the Convention once ratified.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016. Chapter 2.

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The Hague Judgments project rolls on. And a quick note on [2018] FCA 549 Kraft Foods v Bega Cheese.

Update 22 February 2019 for a most excellent and critical paper by Ronald Brand calling for the  2019 Judgments Project Conference to be aware of all options for international harmonisation in the area see here.

Kraft Foods v Bega Cheese [2018] FCA 549 was signalled to me by Michael Mitchell back in early May – now seems a good opportunity briefly to report on it. The Federal Court of Australia issued an anti-arbitration injunction to restrain a multinational food conglomerate from pursuing arbitration in New York. Kraft had pursued litigation in Australia which not only sought to restrain the respondent from certain radio and television advertising, but also sought final relief including damages.

Parties had agreed to mediate and arbitrate under the dispute resolution provisions of a Master Agreement for licensing of IP. Bega had acquired certain rights from Mondelez (a company in the Kraft group), including certain trademark rights that Kraft had licensed to Mondelez pursuant to the Master Agreement.

Of interest to the blog is the myriad number of issues that led the Court to issue the injunction, among others the fact that what was sought included interim relief, the position of which when it comes to enforcement is not entirely clear in the New York Convention. Throw intellectual property, mediation as well as arbitration, common law doctrine principles such as the Aldi rule in the mix, and the jurisdictional soup becomes quite attractive as well as complex. Precisely why intellectual property is hotly debated in the Hague Judgments project and likely to be excluded from it.

That latter brings me to the second part of the blog title: the HCCH have issued a Revised Draft Explanatory Report, and a document on the possible exclusion of anti-trust matters from the Convention as reflected in Article 2(1)(p) of the 2018 draft Convention. Both signal the continuing difficulty of the roll-out of the Hague Process, as well as continued intent to let the train roll into its end destination; although one wonders how many wagons will have been left behind en route.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016. Chapter 2.

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A quick update on the Hague Judgments project.

A post more meant to refer the readers to resources rather than to add much analysis myself. I have of course earlier posted on the ‘Hague Judgments Convention’. Things have not stood still since.

A first interesting resource is the April 2018 study prepared for the European Parliament. I am pleased the stellar team of colleagues who compiled the study, although overall (in my view a tad too) optimistic on the project, did not whitewash the difficulties involved in the process. The additional layer of complexity, were the EU to accede to the eventual (if any) Convention, was highlighted as a cause for concern. Also in April: the Australian Government consultation paper on the Hague process.

Next up, the May 2018 documents published on the HCCH gateway, including a new draft Convention and a preliminary draft explanatory report. Each and every one of the articles of the Draft can be the subject of very extensive analysis indeed – one need only look at the Chapters on jurisdiction in the books on EU private international law, to appreciate the level of complexity; and of course the every so slight or not so slight differences between the ‘Brussels regime’ and the ‘Hague process’. I trust one or two of my colleagues are devoting their summer writing up just such an analysis.

The process is to be continued for we are not there just yet.

Geert.

 

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