The Hague Convention on Choice of Court Agreements might
achieve for litigation what the New York Convention managed for
The Hague Convention on Choice of Court Agreements (30 June
2005) entered into force October 1, 2015.
Some observers say that the pro-arbitration trend in
international commercial transactions could shift in favor of
litigation as a result of the coming into force last year of a
treaty that makes it easier to enforce choice-of-court agreements
(or 'forum selection clauses') and foreign court judgments.
The Hague Convention on Choice of Court Agreements aims to create a
system of recognition of court decisions with the same level of
predictability and enforceability as arbitral awards under the New
Could the Hague Convention on Choice of Court Agreements achieve
for litigation what the New York Convention has secured for
The New York Convention v the Hague Convention
The 1958 New York Convention has been in force for more than 55
years, in which time it has secured 156 ratifications and seen the
publication of influential academic materials and a growing body of
case law from across jurisdictions, enabling a degree of common
interpretation of the meaning of its 16 articles.
The New York Convention lays down two fundamental provisions.
The first provides that 'each Contracting State shall recognize
an agreement in writing under which the parties undertake to submit
to arbitration all or any difference'. The second states that
'each Contracting State shall recognize arbitral awards as
binding and enforce them'. In practice, this means that when
parties agree to resolve their dispute through arbitration, the
subsequent award is almost universally enforceable. Where any party
elects to ignore the arbitration agreement or avoid the
consequences of the award, the affected party can also submit a
request to the tribunal of the contracting state to refer the
parties to arbitration and/or enforce the award (articles 2 and 3).
The Hague Convention on Choice of Court Agreements contains similar
provisions regarding the recognition of choice of court agreements
and the resulting judgments from such courts.
The Hague Convention on Choice of Court Agreements has to date
been ratified only by Mexico and the European Union (excluding
Denmark). It contains 34 articles, so one cannot presume the same
level of understanding as now exists around the New York Convention
(which contains half as many articles). However, the Hague
Convention on Choice of Court Agreements was created by the Hague
Conference on Private International Law – an organization
founded in 1893 and which, in 2015, had 79 countries and the
European Union as members – so is clearly an important
instrument to be factored into strategic planning for international
2015 Litigation Trends: annual survey
Norton Rose Fulbright's 2015 survey polled more than 800
corporate counsel representing companies across 26 countries on
disputes-related issues and concerns. Around 25 per cent of the
individuals polled believe that the number of legal disputes their
company will face in the next 12 months will increase. 'Given
the choice, nearly half of respondents prefer to use arbitration as
a means of resolving disputes, with one-quarter preferring
litigation and about the same proportion saying 'it
Kyle Kashuba is a partner in our Calgary office and Pedro
Saghy is a principal in our Caracas office.
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