CYIL vol. 14 (2023)

CYIL 14 (2023) COMPARISON OF THE PROROGATION AGREEMENTS UNDER THE HAGUE CONVENTION… carefully in practice. Although private international law is concerned with respecting the will of the parties, the choice of jurisdiction has certain limitations. These limitations are regulated in particular concerning specific matters, for example in the case of compulsory jurisdiction under the Brussels I bis Regulation, to ensure greater protection for the weaker party to the proceedings. The choice of jurisdiction is also enshrined in the national legislation of the Member States. This article will not deal with this regime because, to the extent that Union law and international treaties regulate identical issues and are also of a fulfilled scope, they carry precedence of the application over national rules. Except Denmark, which acceded separately, the Member States are bound by the Choice of Court Convention by virtue of the approval of the European Union. 5 The primacy of the Convention over national rules is also confirmed by the Vienna Convention on the Law of Treaties. 6 The primacy of European Union law over the national law of the Member States has been declared in the case law of the Court of Justice of the European Union, in Costa v. E.N.E.L. , 7 Simmenthal , 8 and other cases. It is precisely because of the precedence of the analysed sources of law over national rules within the EU, and within the limits of the parallel scope, that the author has chosen not to focus the article on national legislation. The national rules of course stay in force, but the situations where the analysed sources would not be applicable are more likely to be in practice only concerning non-Contracting Parties and non-Member States. The harmonisation of private international law rules, whether at the international or Union level, means that in practice an immanent part of the arising relationships with a foreign element fall within the scope of the Brussels I bis Regulation or the Convention, and national rules are applied more and more sporadically. 1.1 Choice of jurisdiction under the Brussels I bis Regulation In General, the Brussels I bis Regulation governs the determination of jurisdiction in civil and commercial matters and the enforcement and recognition of foreign judgments concerning those matters. It creates a framework for determining the jurisdiction of the courts in cases where the scope of the Regulation is given. The temporal scope of the Regulation is fixed for proceedings instituted on or after 10 January 2015. 9 The personal scope is not relevant for the purposes of the present work, as the choice can be made under the Brussels I bis regime even if the parties are not domiciled within the EU. 10 The Regulation applies within the EU Member States. Despite the initial use of the opt-out clause by Denmark, the supplementary Agreement 11 extended the territorial scope to Denmark as well. Substantive jurisdiction, ratione materiae , is the most extensive. The positive definition establishes the scope of the Regulation for civil and commercial matters with a foreign element, while the 5 HCCH, 2023. Convention of 30 June 2005 on Choice of Court Agreements – status table. [online]. Available at: https://www.hcch.net/en/instruments/conventions/status-table/?cid=98 last accessed on 30 May 2023. 6 Art. 27 of the of the Vienna Convention on the Law of Treaties. 7 Judgment of the Court of 15 July 1964, Flaminio Costa v E.N.E.L., C 6/64, EU:C:1964:66. 8 Judgment of the Court of 9 March 1978, Amministrazione delle finanze dello Stato/Simmenthal , C-106/77, EU:C:1978:49. 9 Art. 66(1) of the Brussels I bis Regulation. 10 Art. 25(1) a recital 14 Ibid. 11 Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 251, 21.9.2013, pp. 1–2).

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