CYIL vol. 11 (2020)

DIMITRIS I. LIAKOPOULOS CYIL 11 (2020) convention is however less satisfactory because, among other things, the extent of its scope depends on a complicated system of declarations and because, on the other hand, it regulates jurisdiction only in a indirect, as a mere requirement for recognition of decisions 25 . The United Kingdom has meanwhile acceded to the 2005 Hague Convention 26 on choice of court agreements 27 , of which it would otherwise have ceased to be part 28 ; with the withdrawal from the Union the effects of this adhesion, filed in advance so as to avoid periods of interruption in the conventional regime 29 , have been deferred several times to adapt them to the various Brexit referrals that have followed. The British government has dedicated to the adaptation to the Convention the specific regulatory instrument of the Civil Jurisdiction and Judgments (Hague Convention on Choice of Court Agreements 2005) (EU Exit) Regulations 2018. Compared to the Brussels-Lugano regime, the regulation dictated by this convention has a very limited scope. However, it is undoubtedly useful because it guarantees in the relations with the other Contracting States the effects of the choice of court clauses, and specifically those of the English forum, currently contained in many commercial contracts. To operate, however, the Convention requires the existence of a choice agreement that has an exclusive character and has been drawn up or documented in writing (or on a durable medium). In addition, the Convention has a rather limited objective field of application, from which contracts with consumers and employment relationships are excluded, as well as numerous other matters listed in art. 2, par. 2 (such as, inter alia, transport, property rights, damage to persons and property, matters relating to insolvency, anti-trust and intellectual property other than copyright), whose non-inclusion significantly reduces its practical relevance. The first commentators of the consequences of Brexit on the Brussels-Lugano regime had identified a series of hypotheses, among which the possible revival of the 1968 Brussels Convention which, although being replaced by the Brussels I Regulation, is still in force in relations with some overseas territories of states of the Union 30 . However, this eventuality is 25 Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, The Hague, 2 July 2019. 26 https://www.hcch.net/en/instruments/conventions/full-text/?cid=98. 27 PERTEGÀS, M. ‘The Brussels I Regulation and the Hague Convention on choice of court agreements’, (2010), 11, EF 22ss. SYMEONIDES, S. Codifying choice of law around the world: An international comparative analysis , (Oxford University Press, Oxford, 2014). TEITZ, L.E. ‘Another Hague judgments Convention? Bucking the past to provide for the future’, (2019), 29, DJC& IL 492ss. 28 The Hague Convention of 30 June 2005 on choice of court agreements was ratified by the European Union in the name of its Member States, with the exclusion of Denmark-which, however, proceeded to accede to it autonomously-and is also in force in Mexico, Montenegro and Singapore. 29 The United Kingdom thus hopes to eliminate the risk of difficulties of temporal application: the conventional regime in fact only applies when the agreement on the choice of the forum has been entered into after the entry into force of the Convention for the State concerned. A problem could therefore arise for the agreements entered into during the period in which the United Kingdom was to be considered a contracting party as a member of the Union, should the new accession be considered not to be a continuation of the previous one. Although such a restrictive interpretation is unlikely. BORN, G. B. International arbitration: Cases and materials , (Kluwer Law International, The Hague, 2016). KLEINHEISTEINKAMP, J. ‘Overriding mandatory laws in international arbitration’, (2018), 67 (4) ICLQ 906ss. KREINDER, R.H. Competence-competence in the face of illegality in contracts and arbitration agreements , (ed. Brill, The Hague, 2013) 154ss. BILLIET, J. International investment arbitration: A practical handbook , (ed. Maklu, Antwerp, The Hague, 2016) 178ss. 30 Withdrawal from the EU should be considered as an essential change in circumstances which, according to customary international treaty law rules, would not allow the UK’s participation in the instrument to survive. See also: AIKENS, R., DINSMORE, A. ‘Jurisdiction, enforcement and the conflict of laws in cross-border

264