CYIL vol. 14 (2023)

CYIL 14 (2023) COMPARISON OF THE PROROGATION AGREEMENTS UNDER THE HAGUE CONVENTION… has arisen. 47 The form of the exclusive jurisdiction agreement is narrower in the Convention than in the Brussels I bis Regulation. The Convention allows only written, or by other means of communication, but only provided that they preserve the information in question in a demonstrable form. 48 As has already been mentioned, the Brussels I bis Regulation goes beyond the Convention in the form of a conclusion and accepts in international trade a form that is in accordance with custom and practice as well. An interesting feature is the possibility, as set out in the Explanatory Memorandum, of returning to the national regime. If the treaty did not have the form prescribed by the Convention, it would not have the scope and the court hearing the case may examine its acceptance in the light of its national private international law. 49 In practice, this option is only usable in the EU in cases where the Brussels I bis Regulation is not applicable either, because, as noted, the rules in the Regulation would prevail between Member States over national rules. Another interesting point is that the Hague Conference preferred the ‘documented in writing’ form to ‘evidenced in writing’ on the grounds that this might evoke the anchoring of the rule of evidence in the concept of “evidenced”. 50 It follows from what has been discussed so far that the choice of jurisdiction rules enshrined in the Brussels I bis Regulation and the Convention are similar, but contain some disparities. For de lege ferenda considerations, scope for a deeper alignment of the Brussels regime with the provisions of the Convention would be seen, in particular in the questions of scope in relation to public law subjects, but also in the explicit possibility of specifying more precisely the courts whose jurisdiction is being prorogated by the agreement. On the contrary, the author is of the opinion that the Convention should in the future reconsider the question of tacit choice of jurisdiction based on subordination to the jurisdiction of a unilaterally chosen court. The Convention does not apply in cases with the protection of the weaker party and the author therefore thinks that this clause would be capable of creating a more flexible choice of court process. The aim of this chapter was to analyse the two legal arrangements for the choice of court and to compare them with each other. As these are two sources which are cumulative and parallel in their scope of application, in international trade in practice it may be the case that a choice of jurisdiction clause will fall within the scope of both the Brussels I bis Regulation and the Convention. For practical application, it is therefore essential to know the interrelationship between the sources analysed and to identify their effects in the EU acquis and the circumstances in which the Convention will take precedence and in which the Brussels I bis Regulation will take precedence. 2. Effects of the Convention in the EU acquis and interrelationship with the Brussels I bis Regulation As has already indicated in the article, in practice it is not excluded that the relationship under consideration with a foreign element will fall within the scope of the Convention and, in parallel, the Brussels I bis Regulation, and it is, therefore, necessary to deal with their

47 HARTLEY, T., DOGAUCHI, M. (n 28). 48 Art. 3(c) of the Choice of Court Convention. 49 HARTLEY, T., DOGAUCHI, M. (n 28). 50 Ibid.

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