CYIL vol. 14 (2023)

CYIL 14 (2023) COMPARISON OF THE PROROGATION AGREEMENTS UNDER THE HAGUE CONVENTION… of its approval by the Union. 31 Denmark later acceded to the Convention, not on the basis of Union approval, but on its own. In addition to the EU, other States are also parties to the Convention; currently, the Convention is in force in Mexico, Montenegro, Singapore, the United Kingdom, and Northern Ireland, and will be in force in Ukraine from August 2023. 32 Despite the primary objective of unifying the rules on the choice of forum for international commercial disputes, Article 1 of the Convention positively defines the scope of exclusive choice of court agreements concluded generally in civil and commercial matters exclusively in international matters. 33 For jurisdictional purposes, an international matter is considered to be a situation in which the parties are not domiciled in the same Contracting State, or where the relationship of the parties and all other elements of the matter have no nexus with that State. This is essentially the definition of a foreign element in the context of the Convention. It is not sufficient that the only international element is the fact that, in a case that does not extend beyond the boundaries of a single State, the only relation to the foreign forum is the choice of the foreign court. The negative definition of scope narrows the ratione materiae significantly compared to the Brussels I bis Regulation, as it also excludes consumer and employment contracts from its scope. 34 The notion of consumer contracts, by an autonomous interpretation of the Convention, also includes the exclusion of agreements in which a natural person acting for personal, family, and household purposes acts on one side. This interpretation is so expansive that, in practice, one can only imagine a natural person acting as a self-employed person on the party to a choice-of-court agreement under the Convention. 35 The EU declaration excludes insurance contracts from the material scope of the Convention, for the EU and, by implication, its Member States, , except for those listed by the EU in its declaration. In the light of experience during the application of the Convention, the EU will re-examine the need to maintain the status quo with regard to insurance contracts as set out in the Declaration. 36 It follows that in the case of a weaker party, within the limits of Brussels I bis obligatory jurisdiction, there is no concurrent application of the Convention. Consequently, agreements on the personal status of a natural person, family law issues, maintenance, inheritance, damages for personal injury claimed by a natural person, rights in rem over immovable property, and many others are excluded from the scope of application in Article 2(2) of the Convention. 37 The concurrent scope is therefore found in practice principally in the choice of court clauses in international trade. Contrary to the Brussels I bis Regulation, where this stems from the case law of the Court of Justice, the Convention makes it clear that cases in which the State or any person acting on its behalf is a party to the proceedings do not result in an automatic exclusion from the substantive scope of application. 38 As in the Brussels I bis case, it is necessary to identify the subject matter and nature of the legal relationship between the parties. If the position

31 Recitals 5 and 6 of the Council Decision (n 30). 32 HCCH (n 6). 33 Art. 1 of the Choice of Court Convention. 34 Art 2(1) Ibid. 35 HARTLEY, T., DOGAUCHI, M. (n 28). 36 Annex I, Annex II to Council Decision (n 30). 37 Art. 2(2) of the Choice of Court Convention. 38 Art. 2(5) Ibid.

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