CYIL vol. 12 (2021)

Kateřina zabloudilovÁ

CYIL 12 (2021)

The Hague Convention The Hague Convention also contains detailed regulation of formal validity of jurisdiction agreements which cannot be varied or overridden by national laws. 95 It provides that jurisdiction agreements shall be concluded or documented in writing or by any other means of communication that renders information accessible to be usable for subsequent reference. 96 Thus, the Hague Convention admits written and electronic forms of jurisdiction agreements provided that the agreement is concluded or documented in one of these forms. 97 If the jurisdiction agreement is in writing, its formal validity is not dependent on its being signed. 98 Moreover, an oral jurisdiction agreement with subsequent written confirmation by the other party is formally valid. 99 Furthermore, the Hague Convention covers electronic means of data transmission or storage (e-mails, faxes, telexes, etc.). 100 In comparison to the Brussels Ibis Regulation, the list of admitted forms of jurisdiction agreements is narrower – the forms shown by practices among the parties and by international trade usage are missing. It is nevertheless recommended to interpret the Hague Convention liberally as admitting these two forms of jurisdiction agreements. 101 The Partial Conclusion NY Convention, Brussels Ibis Regulation, and the Hague Convention contain requirements regarding the formal validity of arbitration and jurisdiction agreements. Under all three legal documents, arbitration or jurisdiction agreements are formally valid if signed by the parties or contained in the exchange of documents including electronic means of communication. The Brussels Ibis Regulation and the Hague Convention admit the oral form of jurisdiction agreements with subsequent written confirmation, form which accords with practices among the parties, and the form used in international trade and commerce. Both the Brussels Ibis Regulation and the Hague Convention contain detailed provisions regarding the formal validity of arbitration agreements that cannot be modified by national courts. In contrast, when interpreting the NY Convention, it is recommended to assess the formal validity of arbitration agreements under less stringent formal requirements available under national laws or international treaties. In the author’s view, the regulation of formal requirements of jurisdiction and arbitration agreements under all three legal regulations is comparable. The list of admitted forms of jurisdiction agreements under the Brussels Ibis Regulation and the Hague Convention is 95 Hartley, C. T. (op. cit. sub 31), p. 133; see also Hartley, T., Dogauchi, M. (op. cit. sub 47), p . 53. 96 Art. 3(c) of the Hague Convention. 97 Hartley, T., Dogauchi, M. (op. cit. sub 47), p. 53. 98 Id . 99 Hartley, T., Dogauchi, M. (op. cit. sub 47), p. 53; see also see also Hartley, C. T. (op. cit. sub 31), p. 164; see also Hrnčiříková, Halla, Malacka, Ryšavý. Mediační, prorogační a rozhodčí doložky o řešení přeshraničních sporů , p. 96. 100 Hartley, T., Dogauchi, M. (op. cit. sub 47), p. 53; see also Hartley, C. T. (op. cit. sub 31), p. 163; see also Hrnčiříková, Halla, Malacka, Ryšavý. Mediační, prorogační a rozhodčí doložky o řešení přeshraničních sporů , p. 93. 101 Hartley, C. T. (op. cit. sub 31), pp. 164, 165. Summary

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