CYIL vol. 14 (2023)

CYIL 14 (2023) COMPARISON OF THE PROROGATION AGREEMENTS UNDER THE HAGUE CONVENTION… could not be imagined that the application of its provisions in practice. The question of direct effect will be dealt with in the next chapter, as it is one of the main attributes that affect the relationship between the Convention and the Brussels I bis Regulation. 2.2 The interrelation of the analysed legal sources The nature of the relationship between the Brussels I bis Regulation and the Convention is affected by the mere fact that the EU is a party to the Convention. As legal theory has argued, the relationship between international treaties and secondary Union law in the field of private international law cannot be clearly and generally defined. 79 It is necessary to examine the interrelation in concreto between a specific regulation and a specific convention. In this case, the Convention in question is a Convention which is primarily binding from the point of view of public international law. 80 It is not only binding on the EU itself, but, in accordance with Article 216(2), the Treaties are also binding on the Member States 81 and are governed by the principle of pacta sunt servanda and other principles. To identify the interrelationship between the analysed sources, it is required that the scope of both regulations is fulfilled in parallel in a specific case. As has already mentioned in the paper, the Explanatory Memorandum to the Convention states that only exclusive choice of court agreements covered by Chapter II of the Convention falls within its scope. These agreements fall within the scope of the Convention only provided that they meet the requirements for the form that was described earlier in this article . 82 In practice, this means that if, for example, a choice of court agreement was not in writing but was concluded in accordance with custom, which is one of the forms of the agreement under Brussels I bis, such an agreement would not fall within the scope of the Convention. The Brussels I bis Regulation would not be excluded. If we were to assume that the same agreement was concluded in writing and fell within the scope of both sources, we would already have to deal with their interrelationship. Thus, in practice, we deal with the interrelationship only on the assumption that the scope of the two sources is fulfilled in parallel and it is necessary to determine which of them will have precedence of application. It is significant for the regulations adopted within the context of judicial cooperation in civil matters that they deal directly in their wording with the relationship with the conventions which have fulfilled their scope on identical issues. Article 71 Brussels I bis states that the Regulation does not affect those Conventions to which the Member States are parties and which deal with specific matters. 83 In the event of a conflict of rules, these conventions would apply, not only concerning third-countries but also within the EU. 84 Although the choice of jurisdiction agreements are of a general nature and regulate the same area, 85 from the author’s point of view it is not impossible to talk about a specific regulation, since the aim is the aforementioned higher standard of protection and legal certainty when dealing 79 ŠTEFANKOVÁ, N. a kol. Medzinárodné právo súkromné [International private law] . 1. vyd. Praha: C. H. Beck, 2011. p. 118. 80 KARAS, V., KRÁLIK, A. Právo Európskej únie [The Law of the European Union] . 1. vyd. Praha: C. H. Beck, 2012. s 165. 81 Art. 216(2) of the Consolidated version of the TFEU (n 52). 82 HARTLEY, T., DOGAUCHI, M. (n 28). 83 Art. 71 of the Brussels I bis Regulation. 84 Judgment of the Court of 4 May 2010, TNT Express Nederland , C-533/08, EU:C:2010:243. 85 HARTLEY, T., DOGAUCHI, M. (n 28).

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