Posts Tagged Prorogation
Golden Endurance v RMA,  EWHC 2110 (Comm), illustrates the attraction of having a unified approach to submission (to jurisdiction), otherwise known as voluntary appearance. In current case, the judgment that needs to be recognised is ex-EU (Moroccan) hence the Brussels I Recast does not apply: English law does. This is in fact exactly why The Hague is working hard at its ‘Judgments’ Convention – not an easy project in my view. As helpfully summarised by Sam Goodman, the court held that a Moroccan judgment would not be recognised in England because the claimant had not submitted to the jurisdiction of the Moroccan court. Although the claimant had appeared in the Moroccan proceedings, it had done so in order to ask the court to stay the Moroccan proceedings in favour of arbitration and had only engaged with the merits as it was obliged to do so under Moroccan law.
Of note is that Phillips J points out that under the relevant English statutory rules, the question arises as to when defending a case on its merits, at the same time as contesting jurisdiction, submission applies: a scenario for which the Brussels I Recast provides specifically in Article 26. An English court does not for this exercise rely on civil procedure rules in the country of origin of the judgment: this surely makes sense for otherwise it would encourage forum shopping by unscrupulous claimants. Instead, whether one has submitted is ‘a question of mixed law and fact’ (at 46) which in this case was decided in favour of the claimant in the English court, ‘the claimant, having requested the dismissal of the claim in Morocco in favour of arbitration proceedings and having done so continually and as its primary response, did not voluntarily appear in the Moroccan courts’ (at 47).(The remainder of the judgment relates to transport law: the ‘Hague Rules’).
(Handbook of) EU private international law, Chapter 2, Heading 2.2.7.
Update 21 May 2018. Denmark has now also acceded. Update 2 October 2015. The Convention entered into force on 1 October. Update 5/12/2014: Approval is now final (p.16) and (update 10/12) has been published in OJ. Update 16/10/2014:
The European Commission has adopted its proposal for a Council decision on the approval, on behalf of the EU, of the Hague Convention of 30 June 2005 on Choice of Court Agreements. The Convention, which has not yet entered into force (but will be, once the EU ratifies), contains three basic rules that give effect to choice of court agreements (from the Convention’s website):
The Commission does propose that the EU make a declaration, excluding the application of the Convention to insurance contracts (unlike the recast Brussels I Regulation’s provisions re consumers and employees, insurers not domiciled in the EU continue to fall outside the Regulation), in spite of objections.
The downside of the complete exclusion of insurance contracts, from the point of view of European insurers, is that choice of court clauses they have negotiated with non-European policyholders would not be recognised and enforced in third States which are Contracting Parties to the Convention. From the perspective of the European policyholders, these would lose the advantage of having the decisions of EU courtsʼ (chosen by the parties) recognised and enforced outside the Union under the Convention – the EC is however more concerned about the position of the European insureds (as opposed to the insurers): if the Convention were to be concluded without excluding insurance contracts, there would be a lack of parallelism with the protective policy established in the Brussels I Regulation which allows the insured party to sue an EU insurer (or a EU branch of third State insurer) in his own place of domicile irrespective of any other jurisdiction available under a choice of court agreement. not all Member States agree with the Commission hence one will have to wait and see how this issue will be decided.
At any rate and more generally, were the EU to accede, this does of course put into question the relationship between the Brussels I Regulation, the Convention, and the Lugano Convention. The EC notes that Brussels I does not “govern the enforcement in the Union of choice of court agreements in favor of third State courts”. (Ignoring, incidentally, the judgment in Gothaer, which does achieve the same result in specific circumstances).
This would, in the EC’s view, rather be achieved by the Convention. The amendments to the Brussels I regulation introduced with the recast of 2012 “have strengthened party autonomy” and now “ensure that the approach to choice of court agreements for intra-EU situations is consistent with the one that would apply to extra-EU situations under the Convention, once approved by the Union”.
A ‘disconnection clause’ set out in Article 26(6) provides that the Convention shall not affect the application of the regulation “where none of the parties is resident in a Contracting State that is not a Member State” of the Union and “as concerns the recognition or enforcement of judgments as between Member States”. “(T)he Convention affects the application of the Brussels I regulation if at least one of the parties is resident in a Contracting State to the Convention”, and shall “prevail over the jurisdiction rules of the regulation except if both parties are EU residents or come from third states, not Contracting Parties to the Convention”.
As regards the recognition and enforcement of judgments, the Regulation “will prevail where the court that made the judgment and the court in which recognition and enforcement is sought are both located in the Union”.
Hence in summary, according to the proposal, the Convention will “reduce the scope of application of the Brussels I regulation”, but “this reduction of scope is acceptable in the light of the increase in the respect for party autonomy at international level and increased legal certainty for EU companies engaged in trade with third State parties”.
Hum. I am not convinced. The above signals a fairly complex regime of scope of application of Convention cq Regulation. The Regulation continues to differ from the Convention. (E.g. in not requiring written agreement for choice of court). Neither does it clearly (in contrast with the recast Regulation) settle applicable law to determine validity of the clause: is it lex fori prorogati?). In my view it adds a layer of complexity rather than removing some.