CYIL vol. 14 (2023)

DOMINIKA MORAVCOVÁ

CYIL 14 (2023)

Conclusion The submitted article deals with the concept of choice of jurisdiction under the key supranational sources of private international law, the Hague Convention on Choice of Court Agreements and the Brussels I bis Regulation from the EU acquis . The main aim of the article was to identify the interrelation of the selected sources and to compare them in relation to the regime of the prorogation agreement and its requirements. The choice of jurisdiction agreement is regulated in a similar way in the analysed sources, which is essentially a necessity for the Union to accede to the Convention and to ensure that the provisions of the Convention do not collide with Union law. The most significant disparities that have been identified are in the definition of scope. Despite the seemingly identical ratione materiae , the Convention narrows the concept of civil and commercial matters considerably and applies to international commercial relations. If the party is a natural person, they act in the position of a self-employed person. A difference in scope in the exclusive nature of the prorogation jurisdiction under the Convention is also found. Assuming that it was not exclusive, it would result in non-fulfilment of the scope of the Convention. The non-EU States are also parties to the Convention, which also distinguishes the sources in the territorial scope. The differences are only minimal on the requirements of choice, but in practice, the most significant differences in the Convention are in the requirements for the form of the agreement and the need to express unambiguous consent to the choice, thus excluding the possibility of a tacit choice in the form of subordination to the jurisdiction. The Convention interprets the concept of residence in an extensive manner. Prior to the adoption of the Brussels I bis Regulation, there were also differences on lis pendens , but the latest Brussels regulation in the context of the “Italian torpedo” already corresponds to a large extent to the regulation in the Convention. A noticeable difference is the possibility to choose the courts of the European Union in the context of a choice of court agreement under the Convention (possible on the legal basis of Article 272 TFEU). The identification of the interrelationship between the analysed sources is complicated, as the relationship must be considered both in the light of the EU legislation and within the context of the wording of the Convention and the relevant Explanatory Memorandum. In practice, the examination of the interrelationship is relevant only in cases in which the scope of both sources under examination is fulfilled in parallel. As was previously stated, by virtue of the direct effect of the Convention under analysis in the Union acquis , the relationship is clear from the point of view of Union law; an international treaty concluded by the Union has hierarchical precedence over a secondary act. From the point of view of the Convention, the interrelation with the Union regulation is clearly identifiable on the basis of Article 26(6). The Convention will have precedence as regards the question of jurisdiction in those cases where at least one of the parties to the agreement is an entity resident in a Contracting State to the Convention which is not also a Member State of the EU. The residence is to be identified on the basis of the Convention itself and is drafted rather expansively. In the author’s view, the court of the Member State hearing the case should accept this siu generis renvoi to the precedence of the Brussels I bis Regulation in strictly intra-union cases. It is the author’s opinion that this corresponds to a reasonable ordering of the case, since the Regulation best reflects the needs of legislation not extending outside the EU. The Convention has become widely applicable in practice, particularly in the context of the UK’s withdrawal

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