CYIL vol. 12 (2021)

CYIL 12 (2021) Universal, Regional, and National Ways of Regulation of Jurisdiction … agreement is only triggered if the chosen court is actually seized by one of the parties. 120 As Magnus and Mankowski state:“ A tactical claimant wishing to pre-empt proceedings in one of the EU Member State might initiate proceedings in its preferred court, alleging the existence of a jurisdiction agreement in favour of that court, and forcing the defendant to defend such proceedings in the allegedly chosen court .” 121 Thus, the defendant who may not at all wish to initiate the proceedings in the first place is forced to bring the claim to the chosen court to make sure that the non-chosen court stays the proceedings. 122 Moreover, it is unlikely that the defendant seeking to enforce the jurisdiction agreement could entirely escape the inconvenience and expenses of defending the proceedings in both the chosen and the non-chosen court. 123 The Hague Convention Correspondingly to the Brussels Ibis Regulation, jurisdiction agreements under the Hague Convention grant jurisdiction to the chosen court and deprive all other courts of their jurisdiction. 124 The effects of jurisdiction agreements under the Hague Convention are regulated in a way that the court or courts designated in an exclusive choice of court agreement shall have jurisdiction to decide a dispute to which the agreement applies. 125 Thus, the chosen court must hear the case even if another court is seized first – it is not obliged to wait for the non-chosen court to suspend the proceedings. 126 Thus, the Hague Convention also poses a risk of tactical litigation in a non-chosen court as was described in terms of the Brussels Ibis Regulation. Moreover, the chosen has no discretion and must hear the case and it cannot decline its jurisdiction referring to the doctrine of forum non conviens . 127 The Hague Convention does not stipulate that the chosen court is only obliged to hear the case if one of the parties invokes the jurisdiction agreement. The author believes that such a requirement should be deduced implicitly as courts are unlikely to do so ex officio . The non-chosen court shall suspend or dismiss the proceedings to which a jurisdiction agreement applies. 128 The Hague Convention, however, in its Article 6 governs five exceptions 129 120 Hrnčiříková, Halla, Malacka, Ryšavý. Mediační, prorogační a rozhodčí doložky o řešení přeshraničních sporů , p. 78; see also Rozehnalová, N., Mahdalová, S., Zavadilová, L. (op. cit. sub 36), p. 340. 121 Magnus, U., Mankowski, P. (op. cit. sub 3), p. 751, 752. 122 Id . 123 Id . at 752. 124 Hartley, C. T. (op. cit. sub 31), p. 172. 125 Art. 5(1) of the Hague Convention; see also Hartley, C. T. (op. cit. sub 31), p. 233. 126 Brand A. R., HerrupM. P. (op. cit. sub 43), p. 82; see also Hartley, C. T. (op. cit. sub 31), p. 233; see also European Comission. 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 Matter (Recast). [online]. europarl.europa.eu . p. 9 [cit. 30. 12. 2020], available at: https://www.europarl.europa.eu/meetdocs/2009_2014/ documents/com/com_com(2010)0748_/com_com(2010)0748_en.pdf. 127 See sub. 115; see also Brand A. R., Herrup M. P. (op. cit. sub 43), p. 12; see also Hartley, C. T. (op. cit. sub 31), p. 233; see also European Commission. (op. cit. sub 126). 128 Art. 6 of the Hague Convention. 129 The first exception under Art. 6(a) of the Hague Convention applies if a jurisdiction agreement is null and void under the law of the state of the chosen court. Second exception under Art. 6(b) of the Hague Convention which comes into effect if a party lacked the capacity to conclude the jurisdiction agreement. The third exception applies if giving effect to a jurisdiction agreement would lead to a manifest injustice or would be manifestly contrary to the public policy of the state of the court seized. The fourth exception under Art. 6(d) of the Hague Convention applies

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