CYIL vol. 14 (2023)

DOMINIKA MORAVCOVÁ CYIL 14 (2023) of a public authority could be substituted by, for example, a commercial company, and all the rights and obligations and the nature of the relationship could be preserved, it is not, as a rule, an exercise of public authority and such a relationship need not be excluded from the ratione materiae . 39 The choice of court agreements create exclusive jurisdiction of the chosen courts under the Convention and are therefore referred to as exclusive forum agreements. This is the same as in the Brussels I bis case, where it was mentioned that unless the parties agree otherwise, the choice of jurisdiction becomes an exclusive jurisdiction. The elements of an exclusive choice of court agreement under the Convention are contained in Articles 3 and 5. The agreement must prorogue the jurisdiction of the courts of the State party to the Convention. It may also provide for the jurisdiction of one or more specific courts of a particular Contracting State. 40 The choice of “Slovak courts” will therefore be as valid as the choice of “Bratislava I District Court” and the choice of “Bratislava I District Court or Bratislava III District Court”. 41 The author considers that the interpretation of the Brussels I bis Regulation and the aforementioned judgment in the Hőszig case are compatible with this provision since they equally allow the choice to confer jurisdiction on a more specifically designated court in a city of a Member State. 42 Here, too, it is true that a Convention binding a number of Contracting Parties cannot require the courts of another State to act on the basis of the provisions of the Convention in a case where it is not bound by the Convention. The author considers it essential to interpret the concept of the State in the context of the European Union by analogy. Under Article 29 of the Convention, “any reference to a ‘Contracting State’ or ‘State’ in this Convention shall apply equally, where appropriate, to a Regional Economic Integration Organisation that is a Party to it”. 43 Since it is not excluded that a State may be a party to an exclusive jurisdiction agreement under the Convention, by virtue of the quoted provision this also applies to the European Union, which may likewise be a party to the choice under the same conditions as those laid down for a State. The choice establishes the jurisdiction of the courts of the State, which, as already been mentioned, may be specified by a particular court. It follows that a choice in favour of the Court of Justice of the European Union (CJEU) would also fulfil the requirements to fall within the scope of the Convention. In this respect, the Convention departs from the Brussels I bis Regulation. Jurisdiction established by agreement precludes other courts from having jurisdiction over the case. 44 Here we see in practice a less flexible provision than that set out in the Brussels I bis Regulation, which allows for a priority of subordination to jurisdiction in the form of a tacit choice of jurisdiction. The Convention requires the explicit consent of all parties to a choice of court agreement. 45 As in Brussels I bis, the choice of court agreement is independent of the other provisions of the treaty and its validity cannot be challenged on the grounds that the treaty itself is invalid. 46 The validity of an agreement is equally judged in the Convention according to the lex fori . An agreement may be concluded even after the dispute 39 E.g., Judgment of the Court of 22 December 2022, Eurelec Trading , C-98/22, EU:C:2022:1032.

40 Art. 3(a) of the Choice of Court Convention. 41 HARTLEY, T., DOGAUCHI, M. (n 28). 42 Judgment of the Court of 7 July 2016, Hőszig , C-222/15, EU:C:2016:525.

43 Art. 29(4) of the Choice of Court Convention. 44 Art. 3(a) of the Choice of Court Convention. 45 HARTLEY, T., DOGAUCHI, M. (n 28). 46 Art. 3(d) of the Choice of Court Convention.

430