CYIL vol. 14 (2023)

CYIL 14 (2023) COMPARISON OF THE PROROGATION AGREEMENTS UNDER THE HAGUE CONVENTION… a more favourable regime for Member States and their entities, which has stricter rules for the refusal of recognition and enforcement. 94 The relationship with other sources of law, of a non-domestic nature, in matters relating to jurisdiction is rather complex. It follows from Article 26(6) that where there are parallel provisions and the cumulative scope of the Convention and the Brussels I bis Regulation is fulfilled, the Regulation will take precedence, provided that all parties are domiciled in a Contracting State which is a Member State of the EU. Should at least one party be domiciled in a Contracting State which is not an EU Member State, the Convention will take precedence. 95 To illustrate this with a simple example, if a choice of jurisdiction agreement were concluded between a Slovak and a Czech company, Brussels I bis would apply. If it were concluded between a Slovak company and a company domiciled in the UK, the Convention would take precedence even assuming that the scope of Brussels I bis would be fulfilled. In order to determine the precedence, we need to identify, by an autonomous interpretation, how the residence of the person is to be identified. Under Article 4(2) of the Convention, this is the State in which the entity has its statutory seat (the seat principle), under the law of which it is incorporated or formed (the incorporation principle), where its central administration is situated (the substantive seat principle), and where its principal place of business is situated. 96 Accordingly, in practice, there may be a situation where, for example, one of the parties has its registered office in the Czech Republic, its central administration in Slovakia and its principal place of business in the UK. The fact that one of the designated locations would be outside the EU Member States and at the same time in a Contracting Party to the Convention would cause the Convention to take precedence in application over the Brussels I bis Regulation. The author considers that in practice, given the UK’s withdrawal from the EU and the retention of a number of original legal relationships with a foreign element with UK companies, it will be in relation to the UK that the Convention will be applied most frequently. This view is supported by the mere fact that, due to the favourable domestic regulation in the UK, this country has become one of the most popular locations for Slovak entrepreneurs to incorporate companies. On the basis of the aforementioned article, just such a domicile in the UK is sufficient for the Convention to take precedence. It follows from the foregoing that, within the Union acquis , the Convention is the carrier of priority. However, the Convention prioritises the Brussels I bis Regulation in strictly intra EU cases. In essence, one can speak of a form of reference back to the use of a source of private international law, a kind of renvoi sui generis . However, in the author’s perspective, the national court hearing the case should accept the Convention to the extent that it gives precedence to the Brussels I bis Regulation, because this corresponds to a reasonable regulation of the relationship. Union law in this area provides broader regulation, and deeper harmonisation and is able to reflect more effectively the needs of Union application. This view is supported in particular by the Explanatory Memorandum to the Convention, which itself refers to the precedence of Brussels I bis provided that the parties are strictly allocated within the EU. This fact has to be verified through the interpretation of the Convention and the provision defining the notion of residence for the purposes of the application of the Convention. 94 HARTLEY, T., DOGAUCHI, M. (n 28). 95 Ibid. 96 Art. 4(2) of the Choice of Court Convention.

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