Abstract
The chapter addresses the issue of jurisdiction against non-EU-domiciled defendants in the light of EU private international law in civil and commercial matters. According to the so-called ‘Brussels System’, such defendants are still subject to the residual application of Member States’ national rules on jurisdiction, including those which are normally considered as having an exorbitant reach. While these grounds of jurisdiction are seen as improper and unfair to such an extent that their use in intra-EU disputes is prohibited, they are nonetheless available when it comes to proceedings against non-EU-domiciled defendants. This gap seems problematic on the sides of both non-EU-domiciled defendants and EU-domiciled claimants, since it ends up generating unequal treatments in relation to foreseeability and access to justice. Against this background, some possible solutions will be therefore evaluated, also in the light of some recent developments at the international level.
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Notes
- 1.
- 2.
Similar findings were initially made at the national level, in particular through the case-law of both the Constitutional Courts of Germany (Bundesverfassungsgericht, 4 May 1971) and Italy. In this regard, the latter stated that Italian conflict-of-law rules (which gave relevance to the nationality of the husband and of the father in familial matters) were contrary to the Italian fundamental law, and in particular to the non-discrimination principle, since such rules ended up creating an unjustified privilege based on gender (Corte Costituzionale, 26 February 1987 n. 71, and 10 December 1987 n. 477).
- 3.
See, for example, Sylvester v Austria (No. 2), App. no. 546407/00 (ECtHR, 3 February 2005); K. v Italy, App. No. 38805/97 (ECtHR, 20 July 2004); Selin Aslı Öztürk v Turkey, App. No. 39523/03 (ECtHR, 13 October 2009).
- 4.
See, in particular, Drozd and Janousek v France and Spain, App. No. 12747/87 (ECtHR, 26 June 1992) and Pellegrini v Italy, App. No. 30882/96 (ECtHR, 20 July 2001).
- 5.
- 6.
See case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECLI:EU:C:1970:114; case 4/73 J. Nold, Kohlen- und Baustoffgroßhandlung v Ruhrkohle Aktiengesellschaft [1974] ECLI:EU:C:1974:51; case 44/79 Liselotte Hauer v Land Rheinland-Pfalz [1979] ECLI:EU:C:1979:290.
- 7.
Golder v United Kingdom, App. No. 4451/70 (ECtHR, 21 February 1975). On this topic, see Kiestra 2014, pp. 95–126.
- 8.
Tonolo 2011, pp. 35–36.
- 9.
- 10.
Case 125/79 Denilauler v Couchet [1980] ECLI:EU:C:1980:130, para 13, where the CJEU stated that ‘All the provisions of the Convention, both those contained in Title II on jurisdiction and those contained in Title III on recognition and enforcement, express the intention to ensure that, within the scope of the objectives of the Convention, proceedings leading to the delivery of judicial decisions take place in such a way that the rights of the defence are observed’. See also case 228/81 Pendy Plastic Products BV v Pluspunkt Handelsgesellschaft [1982] ECLI:EU:C:1982:276, para 13, where it was clarified that ‘the provisions of the Brussels Convention are designed to ensure that the defendant’s rights are effectively protected’.
- 11.
Mc Donald v France, App. no. 18648/04 (ECtHR, 20 April 2008).
- 12.
- 13.
Franzina 2020.
- 14.
On this topic, see Marino 2011.
- 15.
- 16.
The rule gives the French court jurisdiction to hear all disputes brought by citizens against foreign defendants not resident in France. For some remarks on the conditions for this rule to be applied, see Gaudemet-Tallon 2009.
- 17.
According to this rule, if the defendant is not domiciled in Germany but his/her assets are located there, then the German court has jurisdiction to hear and determine proceedings, without any further connection between the case and German legal order being required, even though the overall value of those assets is not sufficient to cover the value of the plaintiff’s claim. This ground of jurisdiction is also known in other legal orders, including Austria, the Netherlands and Belgium. On this topic, see De Winter 1968.
- 18.
BGH 2 July 1991 (XI ZR 206/90), N.J.W. 1991. 3092. 3093. On this topic, see Dannemann 1992, p. 637, who stresses that ‘The sufficient connection test is likely to be problematic in cases where indeed most of the defendant’s assets are in Germany, without the case having any other connection to that country. Its basic flaw is that section 23 was specifically designed for cases without a specific connection with (and thus without a regular venue in) Germany. On the other hand, restricting section 23 by way of a more narrow interpretation of the term “assets”, or, as proposed by Schack, by limiting the enforcement of the judgment to the value of the defendant’s assets in Germany, may prove to be a useful or even necessary, but not a sufficient way of controlling forum shopping in international commercial litigation’.
- 19.
It has been pointed out that the adoption of this solution in the context of other exorbitant rules on jurisdiction, such as those grounded on the nationality of the plaintiff, could help to ensure their compliance with the defendant’s rights, as well as with the principle of non-discrimination between the parties. In this sense, see Lagarde 1986, p. 156, and in agreement Tonolo 2011, pp. 45–46. In this respect, it should also be noted that the French Cour de Cassation has held that Article 14 of the Civil Code does not raise a question of constitutionality, given its limited scope of application, which does not include a large number of disputes (Cour de Cassation, 29 February 2012, 11-40.101).
- 20.
Case C-288/92 Custom Made Commercial v Stawa Metallbau [1994] ECLI:EU:C:1994:268, para 18, where the CJEU stated that ‘The use of criteria other than that of the place of performance, where that confers jurisdiction on a court which has no connection with the case, might jeopardize the possibility of foreseeing which court will have jurisdiction and for that reason be incompatible with the aim of the Convention’.
- 21.
Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L12/1.
- 22.
Regulation (EU) No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2012] OJ L351/1.
- 23.
Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations [2009] OJ L7/1.
- 24.
Recital 15 of Regulation No 4/2009, supra n 23.
- 25.
Di Blase 2014, p. 224.
- 26.
Article 4 of Regulation No 1215/2012, supra n 22.
- 27.
For an overview of the effects of EU civil jurisdiction rules on third States, see Kruger 2008.
- 28.
Opinion No 1/03 [2006] ECLI:EU:C:2006:81, para 144, in which the Court stated that Regulation No 44/2001 ‘contains a set of rules forming a unified system which apply not only to relations between different Member States, since they concern both proceedings pending before the courts of different Member States and judgments delivered by the courts of a Member State for the purposes of their recognition or enforcement in another Member State, but also to relations between a Member State and a non-member country’, and that, ‘given the uniform and coherent nature of the system of rules on conflict of jurisdiction established by Regulation No 44/2001, Article 4(1) thereof, which provides that “if the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to Articles 22 and 23, be determined by the law of that Member State”, must be interpreted as meaning that it forms part of the system implemented by that regulation, since it resolves the situation envisaged by reference to the legislation of the Member State before whose court the matter is brought’ (para 148). On the Lugano Opinion, see Pocar 2007.
- 29.
Nuyts 2007.
- 30.
Tonolo 2011, p. 63, who points out that, even though this solution aims at preventing discriminations against nationals of Member States, it ends up determining discriminatory effects based on domicile. It should be noted, however, that the extension in favour of foreigners domiciled in the forum is in certain cases already provided for by national legislation. On this topic, see Jenard 1979, p. 23.
- 31.
- 32.
Schlosser 1991, p. 5.
- 33.
On this topic, see von Mehren 1981. The general principle of free circulation of judgments delivered in the Member States against defendants domiciled in third States, even on the basis of an exorbitant ground of jurisdiction, is now enshrined in Recital 27 of Regulation No 1215/2012, supra n 22.
- 34.
- 35.
Takahashi 2012, pp. 2–3, who recalls that ‘The original draft of Art 59 of the Brussels Convention allowed a contracting state to enter unilaterally into commitments to third States not to recognise a Community judgment resting on the national exorbitant bases of jurisdiction. In the final text, the requirement that the commitment be part of a convention on the recognition and enforcement of judgments was added’. On this topic, see in particular Nadelmann 1967; von Mehren 1981.
- 36.
For a critical analysis of this specific aspect, see in particular Briggs 2015, p. 633, who states that ‘A defendant who does not have a domicile in a Member State has none of the benefits, but is still exposed to all of the—to him—disadvantages. He does not benefit from the careful structure of jurisdictional rules established by the Regulation. There is no presumption that he should also expect to be able to defend himself in his home courts. (…) But when it comes to recognition and enforcement of judgments, recognition and the enforcement is still automatic. The defendant is not entitled to complain that the adjudicating court had no jurisdiction, or that the jurisdictional rules upon which it relied were objectionable, or even contrary to public policy in the recognising court. In short, he may not invoke the jurisdictional protection given to Europeans at the adjudicatory stage; he is not entitled to complain about whatever jurisdiction was taken over him at the recognition stage. It is a honking disgrace.’
- 37.
- 38.
- 39.
Commission’s proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast), COM(2010) 748 final of 14 December 2010; revised version COM(2010) 748 final/2 of 3 January 2011.
- 40.
See Commission’s impact assessment accompanying the proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast), SEC(2010) 1547 final of 14 December 2010, p. 26.
- 41.
This point is stressed by Symeonides 2018, pp. 4–5, who underlines that ‘Ironically, the rationale for this proposal was not a desire to eliminate the discrimination against third-country defendants but rather a desire to provide all EU plaintiffs with the same access to a forum regardless of the defendant’s domicile.’
- 42.
See Commission’s impact assessment, supra n 40, pp. 20–21.
- 43.
In addition, some authors pointed out that the need to ensure the predictability of solutions, as well as to guarantee to defendants the same level of protection, irrespective of their place of domicile, would require to adopt a restrictive approach in the interpretation of the special grounds of jurisdiction provided for in the Regulation even when it comes to proceedings involving non-EU-domiciled defendants. C-533/07 Falco Privatstiftung and Rabitsch v Weller-Lindhorst [2009] ECLI:EU:C:2009:257, para 37. According to this view, such a situation would have resulted in a further reduction in the prospects for access to justice in the EU. On this topic, see Dickinson 2010, pp. 276–277; Pellegrini 2015, p. 352. However, in this case the restrictive interpretation developed by the CJEU is justified by the special relationship between Article 7 of Regulation No 1215/2012, supra n 18, and the general forum of the defendant's domicile (in a Member State). On the other hand, such a special relationship would not exist with respect to a defendant domiciled in a third State, with corresponding hermeneutical consequences. On this point, see Luzzatto 2012, p. 113.
- 44.
Cafari Panico 2012.
- 45.
Carbone 2013.
- 46.
- 47.
See, for example, Fentiman 2005, p. 304, who underlined that, since the primary scope of the 1968 Brussels Convention was the mutual enforcement of judgments between Member States, ‘to decline jurisdiction in favour of proceedings in a non-Member State leaves the Convention’s primary objective untouched because in that event no judgment, enforceable under the convention, could ever be obtained’.
- 48.
On this topic, see Vitellino 2013.
- 49.
Franzina 2014b, pp. 629–630.
- 50.
Spiliada Maritime Corp. v. Cansulex Ltd., 1987 App. Cas. 460, where the House of Lords noted that in order for the forum non conveniens to apply two conditions must be met: (1) there must be some other available forum having jurisdiction over the action; (2) such forum must prove to be more appropriate, having regard not only to the places where the parties reside or carry on their businesses, but also to both advantages to the plaintiff and disadvantages to the defendant. In this regard, it is worth mentioning that, before the CJEU had clarified the terms of the incompatibility between the ‘Brussels System’ and the forum non conveniens doctrine, scholars pointed out that a forum non conveniens discretion would have been unnecessary in the context of the 1968 Brussels Convention, since it ‘operates as an antidote to exorbitant bases of jurisdiction’, which are prohibited in intra-EU cases. Nonetheless, they underlined that its provision would have been useful in situations involving a non-Contracting State party, where the unavailability of forum non conveniens could ‘lead to jurisdiction being assigned to the courts of what is, admittedly, the most appropriate Contracting State, when it may be more appropriate to have trial in a non-Contracting State’. In this sense, see North and Fawcett 1987, pp. 327–328. See also, In re Harrods (Buenos Aires) Ltd. [1992] Ch 72, where the English Court of Appeal held that English courts may stay and dismiss proceedings on the basis of the forum non conveniens doctrine even when the defendant has his/her domicile in England but the conflict of jurisdiction involves an extra-EU court. In this regard, Lord Justice Dillon suggested, inter alia, that ‘For the English court to refuse jurisdiction, in a case against a person domiciled in England, on the ground that the court of some non-contracting state is the more appropriate court to decide the matters in issue does not in any way impair the object of the Convention of establishing an expeditious, harmonious, and, I would add, certain, procedure for securing the enforcement of judgments, since ex hypothesis if the English court refuses jurisdiction there will be no judgment of the English court to be enforced in the other contracting states. Equally and for the same reason such a refusal of jurisdiction would not impair the object of the Convention that there should, subject to the very large exception of Article 4, be a uniform international jurisdiction for obtaining the judgments which are to be so enforced.’
- 51.
C-281/02 Owusu v Jackson [2005] ECLI:EU:C:2005:120, paras 37–45, where the CJEU pointed out, inter alia, that: (1) the general rule on jurisdiction provided for by Article 2 of the 1968 Brussels Convention is mandatory in nature, to such an extent that there can be no derogation from the principle it lays down, except in the cases expressly provided for by the Convention itself; (2) the rules of the Convention can be applied also in cases that are connected to only one Contracting State and one (or more) third State(s); (3) the forum non conveniens doctrine is liable to undermine the predictability of the rules on jurisdiction laid down by the Convention, and consequently to undermine the principle of legal certainty, which is one of the objectives of the Convention.
- 52.
In this regard, see Recital 24 of the Regulation, which clarifies that, when taking into account the proper administration of justice, the court of the Member State concerned should assess all the circumstances of the case before it, and, among other things, ‘the question whether the court of the third State has exclusive jurisdiction in the particular case in circumstances where a court of a Member State would have exclusive jurisdiction’.
- 53.
- 54.
Droz 1972, pp. 109. See also Ferrexpo AG v Gilson Investments Ltd [2012] EWHC 721, where the High Court applied the doctrine of the reflexive effect, declining jurisdiction in favour of the court of a third State (Ukraine) on the basis of the ‘reflexive’ application of the exclusive forum in matters of the validity of company resolutions, despite the English court had been seised first. On this point, see De Verneuil et al. 2012.
- 55.
EU institutions are well aware that a solution to these conundrums is desirable. See e.g. European Parliament resolution of 7 September 2010 on the implementation and review of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (2009/2140(INI)) (2011/C 308 E/06), paras 15–18. In particular, EU Parliament ‘Considers, on the one hand, that the question whether the rules of the Regulation should be given reflexive effect has not been sufficiently considered and that it would be premature to take this step without much study, wide-ranging consultations and political debate, in which Parliament should play a leading role, and encourages the Commission to initiate this process; considers, on the other hand, that, in view of the existence of large numbers of bilateral agreements between Member States and third countries, questions of reciprocity and international comity, the problem is a global one and a solution should also be sought in parallel in the Hague Conference through the resumption of negotiations on an international judgments convention; mandates the Commission to use its best endeavours to revive this project, the Holy Grail of private international law…’. On these topics, see also Pretelli et al. 2014.
- 56.
In this sense, see Vitellino 2016b, p. 115, who underlines the discriminatory feature of the ‘Brussels System’ under this aspect, and suggests that, in such circumstances, Articles 33 and 34 should be applicable regardless of whether the non-Member State courts has been first or second seised. See also Carbone and Tuo 2015, p. 12, according to whom, due to these provisions, ‘the “torpedo” problem vis-à-vis third-country courts still remains open’, since the aforementioned Recital 24 (supra n 52)—which has been interpreted as a sort of a partial acknowledgment of the ‘reflexive effect’ doctrine in EU external relations—only refers to the case where the EU court is second seised.
- 57.
- 58.
In this regard it should be noted that several EU private international law instruments apply erga omnes, such as Regulation (EU) No 650/2012 of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession [2012] OJ L 201/107.
- 59.
Nisi 2019, pp. 105–106.
- 60.
In this sense, see Mills 2016, p. 567.
- 61.
Ibid., pp. 567–568. See also Nisi 2019, p. 105.
- 62.
See Article 67(1) TFEU, stating that ‘The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States’, and Article 81(2)(e) TFEU, which identifies ‘effective access to justice’ as one of the objectives that EU private international law aims at ensuring.
- 63.
Indeed, according to this rule, in developing judicial cooperation in civil matters having cross-border implications, the EU shall adopt specific measures ‘particularly’ (and not exclusively) when necessary for the proper functioning of the internal market. In this sense, see Ivaldi and Tuo 2012, pp. 10–11.
- 64.
For a critical analysis and a broad overview of the characteristic features of forum necessitatis, see Nwapi 2014.
- 65.
Naït-Liman v Switzerland, App. No. 51357/07 (ECtHR, 15 March 2018), paras 201–202, where the Grand Chamber stressed that ‘In view of the above considerations and the fact that the concept of a forum of necessity is not generally accepted by the States, it cannot be concluded that there exists an international custom rule enshrining the concept of forum of necessity. The Court further notes that there is also no international treaty obligation obliging the States to provide for a forum of necessity’. For a critical assessment of this judgment, see, inter alia, Roorda and Ryngaert 2020.
- 66.
- 67.
See, for example, Article 7 of Regulation No 4/2009, supra n 23, Article 11 of Regulation No 650/2012, supra n 58, Article 11 of Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes [2016] OJ L 183/1 and Article 11 of Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships [2016] OJ L 183/30.
- 68.
See the Commission’s proposal to recast the Brussels I Regulation, supra n 39, p. 3. The conception of the forum necessitatis as an instrument to avoid unequal access for plaintiffs within the EU against non-EU defendants is emphasized by Redfield 2014, p. 910.
- 69.
Nuyts 2007, pp. 64–66.
- 70.
For a recent analysis on the desirability of a forum necessitatis also in civil and commercial matters, see Stürner and Pförtner 2021. In this regard, see also Article 4 of the Resolution on Human Rights and Private International Law, supra n 1.
- 71.
Draft report with recommendations to the Commission on corporate due diligence and corporate accountability of 11 September 2020 (2020/2129(INL)), Recital 10.
- 72.
European Parliament resolution of 10 March 2021 with recommendations to the Commission on corporate due diligence and corporate accountability (2020/2129(INL).
- 73.
See, for example, Austria, Belgium, Spain, the Netherlands, and Estonia, where ‘the European regime, while not being borrowed as such, is the major source of inspiration of national law and practice’, Nuyts 2007, p. 20.
- 74.
- 75.
Bonomi 2007, pp. 320–323.
- 76.
It is worth noting that, under the Italian law, jurisdiction in matters that fall outside the scope of the 1968 Brussels Convention (and which are not covered by other EU instruments) is governed by the final part of Article 3(2) of Law No 218/1995, unless other specific provisions of the Italian Private International Law Statute are applicable. In particular, the above-mentioned rule makes Article 18 of Italian Code of Civil Procedure (c.p.c.), which determines the territorial competence of Italian courts, also applicable to cross-border cases. According to this provision, when the defendant is not domiciled in Italy (or his/her residence is unknown), the Italian court of the place where the plaintiff has his/her residence is competent. Since Article 18 c.p.c. applies the forum actoris, its application in matters which are excluded from the scope of the 1968 Brussels Convention has been criticised from the standpoint of its compatibility with the right to a fair trial. On this topic, see Raiti 1997.
- 77.
- 78.
In this sense, see for example Corte di Cassazione, Sezioni Unite, 5 May 2006 n. 10312 and 3 April 2007 n. 8224. See also Tribunale di Trieste, 3 October 2017.
- 79.
With respect to the issue of successive rules in private international law, see Giardina 1970.
- 80.
- 81.
Case 14/76 De Bloos v Bouyer [1976] ECLI:EU:C:1976:134.
- 82.
Case 12/76 Industrie tessili italiana v Dunlop AG [1976] ECLI:EU:C:1976:133.
- 83.
Corte di Cassazione, Sezioni Unite, 21 October 2009 n. 22239 (with reference to which, see Franzina 2010, and more recently 12 June 2019 n. 15748. However, it should be pointed out that, on other occasions, both the Italian Corte di Cassazione and courts of first instance apply, by virtue of Article 3(2) of Law No 218/1995, the EU private international law Regulations in civil and commercial matters and not the 1968 Brussels Convention. In this sense, see Corte di Cassazione, Sezioni Unite, 25 June 2021 n. 18299; as well as Corte di Cassazione, Sezioni Unite, 20 February 2013 n. 4122; and 12 December 2018 n. 32362. See also Tribunale di Bergamo, 15 April 2021; and Tribunale di Roma, 10 August 2017.
- 84.
Pocar 2020, pp. 6–7.
- 85.
See supra, n 83. On this topic, see Marongiu Buonaiuti 2021, pp. 284–286, who underlines that, at the time, considering Article 3(2) of Law No 218/1995 as now implicitly referring to Regulation No 1215/2012 seems to be the only solution capable of avoiding the inconsistencies of this double standard.
- 86.
On this topic, see Pocar 2011b, pp. 632–633; 2020, p. 5. The Author underlines that the removal of exorbitant fora could mean that an Italian citizen (or a person residing in Italy)—who wants to assert a claim against a person domiciled in a third country—cannot avail himself of Italian jurisdiction, whereas the person domiciled in the third country could—in theory—sue the Italian citizen (or the person residing in Italy) before its own courts on the basis of an exorbitant ground of jurisdiction. This could give rise to several problematic issues, especially when the foreign court, having jurisdiction by virtue of an exorbitant jurisdictional rule, applies procedural or substantive rules that are in contrast with the right to a fair trial. Even though in such cases the recognition of the foreign decision could be denied because manifestly contrary to the public policy, the impossibility of bringing an action before the Italian courts would therefore prevent the Italian citizen (or the person residing in Italy) from enjoying an effective remedy.
- 87.
However, it should be pointed out that Italian Corte di Cassazione specified that Italian rules on jurisdiction should be interpreted in the light of Article 6(1) ECHR in order to prevent a denial of justice (Corte di Cassazione, Sezioni Unite, 17 July 2008 n. 19595).
- 88.
Pocar 2020, pp. 6–7.
- 89.
Opinion No 1/13 [2014] ECLI:EU:C:2014:2303. On this topic, see Franzina 2017.
- 90.
Nisi 2019, pp. 102–103.
- 91.
- 92.
On this point, see Franzina 2017, p. 190.
- 93.
- 94.
Convention of 1 February 1971 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, available at https://www.hcch.net/en/instruments/conventions/full-text/?cid=78.
- 95.
The Contracting states are Cyprus, the Netherlands, Portugal, Albania, and Kuwait.
- 96.
For a critical appraisal of the doing-business jurisdiction, see Twitchell 2001.
- 97.
This point is stressed by Pocar 2021, pp. 6–7.
- 98.
All the relevant documents concerning this project are collected in Pocar and Honorati 2005.
- 99.
Indeed, there is an on-going debate which has been triggered after several criticisms were levelled at the 2005 Hague Convention in respect of its alleged inconsistencies with regard to party autonomy and procedural fairness. In this sense, see Born 2021, who stresses that the regime set forth by the 2005 Hague Convention, assertedly modelled on the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, does not embody sufficient procedural safeguards, since (1) it allows the putative chosen court to determine whether a valid choice of court agreement conferring jurisdiction upon it exists, and makes this decision unreviewable by the courts of other Contracting States (Articles 5(1) and 9(a)), and (2) Article 8(2) of the Convention provides that ‘The court addressed [in recognition proceedings] shall be bound by the findings of fact on which the court of origin based its jurisdiction, unless the judgment was given by default’. In the Author’s view, ‘That is a striking contrast to the New York Convention, where recognition courts are granted the authority by Article V(1)(a) to deny recognition based upon the absence of a valid arbitration agreement, notwithstanding an arbitral tribunal’s ruling that such an agreement existed and notwithstanding an annulment court’s decision to the same effect’. Moreover, under the New York Convention, in order to ensure that the proceedings were conducted fairly, ‘at both the annulment and recognition phases, the procedural decisions of the arbitrators are subject to scrutiny by national courts’ (Articles V(1)(b) and V(1)(d)), while the 2005 Hague Convention does not replicate these safeguards for procedural fairness, since Article 9(d) is directed only to prevent the recognition of judgments ‘obtained by fraud in connection with a matter of procedure’ (and therefore it does not cover other denials of procedural fairness), and Article 9(e)—which allows to deny recognition of judgments when ‘recognition or enforcement would be manifestly incompatible with the public policy of the requested State, including situations where the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State’—does not take into account the fairness and independence of the legal system of the Contracting State whose courts rendered the judgment in question. According to the Author, this framework seems to be particularly problematic if one thinks that the 2005 Hague Convention is open to all the States for ratification—including those whose judicial systems ‘lack the integrity, independence, and competence to justify recognition of their judgments, even where those judgments were made pursuant to a legitimate jurisdictional base,— as it omits to parallel some of the mechanisms that are normally included in other judgments, recognition conventions in order to allow States to opt-out of the Convention’s application in their relations with other Contracting States (see, for example, Article 21 of the 1971 Hague Judgments Convention, or Article 29 of the 2019 Hague Judgments Convention). In responding to these criticisms, scholars highlighted that comparing the 2005 Hague Convention to the 1958 New York Convention is misleading, as the two instruments operate in two different fields, to such an extent that the fact that arbitral awards are subject to review (of judges)—while judicial decisions rendered by the chosen court are not—proves nothing (and it rather confirms the diversity between the two Conventions, as well as the fact that the arbitral system relies on the supervision of the judiciary one), and the wideranging grounds provided for by Article 9 of the 2005 Hague Convention are sufficient to address the concerns raised in respect of both party autonomy and procedural fairness. In this sense, see Hartley 2021; Ribeiro-Bidaoui 2021.
- 100.
Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, available at https://www.hcch.net/en/instruments/conventions/full-text/?cid=137.
- 101.
- 102.
In this sense, see Marongiu Buonaiuti 2020, pp. 126–127, according to whom ‘The exclusion of exorbitant grounds of jurisdiction is at the same time a distinctive feature of the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. (…) Even though the final text of the Convention does not include a ‘black list’ of prohibited grounds of jurisdiction, as envisaged in the initial draft of 1999, the aim pursued remains largely the same. In fact, a judgment given in a Contracting State based on a ground of jurisdiction which does not reveal a sufficient connection between the court of origin and the case, will find its recognition and enforcement in another Contracting State under the Convention precluded.’
- 103.
- 104.
Case 21/76 Handelskwekerij Bier v Mines de Potasse d’Alsace [1976] ECLI:EU:C:1976:166.
- 105.
- 106.
This aspect is pointed out by Symeonides 2018, p. 7, who stresses that ‘In conclusion, the long-awaited Hague convention will not remedy the discriminatory treatment of third-country defendants that the Brussels Convention initiated and its successors continued. If the reason for this treatment was to serve as a bargaining chip for forcing or cajoling other countries to accept a balanced multilateral (direct or indirect) jurisdiction convention, that strategy has not paid off. Moreover, if past experience is any indication, the bilateral convention route does not appear any more promising’.
- 107.
Ibid., pp. 6–7.
- 108.
Jueptner 2020, pp. 255–256. The documents relating to the Jurisdiction Project are available at https://www.hcch.net/en/projects/legislative-projects/jurisdiction-project.
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Benvenuti, E. (2023). Residual Jurisdiction in Civil and Commercial Matters Through the Lens of Non-discrimination and Reciprocity. In: Amoroso, D., Marotti, L., Rossi, P., Spagnolo, A., Zarra, G. (eds) More Equal than Others?. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-539-3_13
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