Choice of Court (Hague Convention) Act 2015

1. Definitions

1. In this Act—

“Contracting State” means a state in respect of which the Convention has entered into force in accordance with Article 31 of that Convention and shall be construed so that this Act shall have effect in relation to—

(a) in case a Contracting State has declared pursuant to Article 28.1 of that Convention that the Convention shall extend to one or more territorial units within the State, the territorial unit or units concerned, and

(b) each other Contracting State;

“Convention” means the Convention on Choice of Court Agreements done at The Hague on the 30th day of June 2005;

“enforcement order” means—

(a) an order made by the Master of the High Court under section 5 of this Act for the recognition or enforcement of the whole or part of a judgment, or

(b) an order of the High Court on appeal from a decision of the Master of the High Court under that section,

and includes an enforcement order made or varied on appeal from a decision of the High Court;

“judgment” means a judgment or order (by whatever name called) that is a judgment for the purposes of the Convention and, except in sections 4and 8, includes a judicial settlement referred to in Article 12 of the Convention;

“Minister” means the Minister for Justice and Equality.

2. Contracting States and declarations and denunciations under Convention

2. (1) The Minister may, by order declare—

(a) that any state specified in the order is a Contracting State, or

(b) that—

(i) a declaration (the text of which shall be set out in the order) has been made pursuant to Article 19, 20, 21, 22, 26 or 28 of the Convention, or

(ii) a modification or withdrawal thereof (the text of which shall be set out in the order) has been made pursuant to Article 32 of that Convention, or

(iii) a denunciation (the text of which shall be set out in the order) has been made pursuant to Article 33 of that Convention,

to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.

(2) An order that is in force under subsection (1) shall be evidence—

(a) as respects any declaration under paragraph (a) of subsection (1) in that order, that any state to which the declaration relates is a Contracting State, and

(b) as respects any declaration under paragraph (b) of subsection (1) in that order, that the declaration, modification, withdrawal or, as the case may be, denunciation concerned was made and of its contents.

3. Convention to have force of law

3. (1) The Convention has the force of law in the State and judicial notice shall be taken of it.

(2) For convenience of reference, the text in the English language of the Convention referred to in Article 34 thereof is set out in the Schedule.

4. Interpretation of Convention

4. (1) Judicial notice shall be taken of any relevant judgments delivered by courts of other Contracting States concerning provisions of the Convention and a court shall, when applying and interpreting its provisions, pay due account to the principles laid down by those decisions.

(2) Judicial notice shall be taken of the explanatory report by Trevor Hartley and Masato Dogauchi on the Convention and that report may be considered by any court when interpreting any of the provisions of the Convention and shall be given such weight as is appropriate in the circumstances.

5. Applications for recognition and enforcement of Convention judgments

5. An application under Chapter III of the Convention for recognition or enforcement in the State of a judgment shall be made to the Master of the High Court and shall be determined by him or her by order (including an order for the recognition or enforcement of a judgment in part only) in accordance with the Convention.

6. Enforcement of Convention judgments

6. Subject to section 7, if an enforcement order has been made respecting a judgment—

(a) the judgment shall, to the extent to which its enforcement is authorised by the enforcement order, be of the same force and effect as a judgment of the High Court, and

(b) the High Court has the same powers respecting enforcement of the judgment, and proceedings may be taken on the judgment, as if it were a judgment of that court.

7. Interest on judgments and payment of costs

7.(1) When on application for an enforcement order, it is shown—

(a) that the judgment provides for the payment of a sum of money, and

(b) that, in accordance with the law of the Contracting State in which the judgment was given, interest on that sum is recoverable under the judgment at a particular rate or rates and from a particular date or time,

the order, if made, shall provide that the person by whom that sum is payable shall also be liable to pay that interest, apart from any interest or costs recoverable by virtue of subsection (2), in accordance with the particulars noted in the order, and the amount of the interest shall be recoverable by the applicant concerned as if it was part of the sum.

(2) An enforcement order may, at the discretion of the court concerned or the Master of the High Court, as may be appropriate, provide for the payment to the applicant by the respondent of the reasonable costs of, or incidental to, the application for an order.

(3) A person by whom costs recoverable by virtue of subsection (2) are payable shall be liable to pay interest on the costs as if they were the subject of an order for the payment of costs made by the High Court on the date of the making of the relevant order.

(4) Interest shall be payable on a sum referred to in subsection (1) only as provided for in this section.

8. Proof and admissibility of certain judgments and related translations and documents

8. (1) For the purposes of the Convention—

(a) a document, duly certified, which purports to be a copy of a judgment given by a court of a Contracting State other than the State shall without further proof be deemed to be a true copy of the judgment, unless the contrary is shown, and

(b) the original or a copy of any document (other than a document referred to in paragraph (a)) mentioned in Article 13 of the Convention shall be admissible as evidence of any matter to which it relates.

(2) A document which—

(a) purports to be a translation of—

(i) a judgment given by a court of a Contracting State other than the State, or

(ii) a document containing a settlement referred to in Article 12 of the Convention, or

(iii) a document referred to in subparagraphs (b) to (e) of Article 13(1) of the Convention,

and

(b) is certified as correct by a person competent to do so,

shall be admissible as evidence of the translation.

(3) A document purporting to be a copy of a judgment given by a court of a Contracting State other than the State, shall, for the purposes of this Act, be regarded as being duly certified if it purports—

(a) to bear the seal of that Court, or

(b) to be certified by a judge or officer of that court to be a true copy of the judgment.

9. Protective measures

9. (1) An application to the Master of the High Court for an enforcement order respecting a judgment may include an application for any protective measures the High Court has power to grant in proceedings that, apart from this Act, are within its jurisdiction.

(2) Where an enforcement order is made, the Master of the High Court shall grant any protective measures referred to in subsection (1) that are sought in the application for an enforcement order.

10. Amendment of Jurisdiction of Courts and Enforcement of Judgments Act 1998

10. Section 20A of the Jurisdiction of Courts and Enforcement of Judgments Act 1998 is amended by the substitution of “section 20J” for “sections 20H and 20J” in the definition of “judgment”.

11. Short title, collective citation and construction

11. (1) This Act may be cited as the Choice of Court (Hague Convention) Act 2015.

(2) The Courts (Supplemental Provisions) Acts 1961 to 2014 and sections 5 to 9 may be cited together as the Courts (Supplemental Provisions) Acts 1961 to 2015 and shall be construed together as one.

SCHEDULE

Section 3

CONVENTION ON CHOICE OF COURT AGREEMENTS

(Concluded 30 June 2005)

The States Parties to the present Convention,

Desiring to promote international trade and investment through enhanced judicial co-operation,

Believing that such co-operation can be enhanced by uniform rules on jurisdiction and on recognition and enforcement of foreign judgments in civil or commercial matters,

Believing that such enhanced co-operation requires in particular an international legal regime that provides certainty and ensures the effectiveness of exclusive choice of court agreements between parties to commercial transactions and that governs the recognition and enforcement of judgments resulting from proceedings based on such agreements,

Have resolved to conclude this Convention and have agreed upon the following provisions—

CHAPTER I - SCOPE AND DEFINITIONS

Article 1

Scope

(1) This Convention shall apply in international cases to exclusive choice of court agreements concluded in civil or commercial matters.

(2) For the purposes of Chapter II, a case is international unless the parties are resident in the same Contracting State and the relationship of the parties and all other elements relevant to the dispute, regardless of the location of the chosen court, are connected only with that State.

(3) For the purposes of Chapter III, a case is international where recognition or enforcement of a foreign judgment is sought.

Article 2

Exclusions from scope

(1) This Convention shall not apply to exclusive choice of court agreements—

a) to which a natural person acting primarily for personal, family or household purposes (a consumer) is a party;

b) relating to contracts of employment, including collective agreements.

(2) This Convention shall not apply to the following matters—

a) the status and legal capacity of natural persons;

b) maintenance obligations;

c) other family law matters, including matrimonial property regimes and other rights or obligations arising out of marriage or similar relationships;

d) wills and succession;

e) insolvency, composition and analogous matters;

f) the carriage of passengers and goods;

g) marine pollution, limitation of liability for maritime claims, general average, and emergency towage and salvage;

h) anti-trust (competition) matters;

i) liability for nuclear damage;

j) claims for personal injury brought by or on behalf of natural persons;

k) tort or delict claims for damage to tangible property that do not arise from a contractual relationship;

l) rights in rem in immovable property, and tenancies of immovable property;

m) the validity, nullity, or dissolution of legal persons, and the validity of decisions of their organs;

n) the validity of intellectual property rights other than copyright and related rights;

o) infringement of intellectual property rights other than copyright and related rights, except where infringement proceedings are brought for breach of a contract between the parties relating to such rights, or could have been brought for breach of that contract;

(3) Notwithstanding paragraph 2, proceedings are not excluded from the scope of this Convention where a matter excluded under that paragraph arises merely as a preliminary question and not as an object of the proceedings. In particular, the mere fact that a matter excluded under paragraph 2 arises by way of defence does not exclude proceedings from the Convention, if that matter is not an object of the proceedings.

(4) This Convention shall not apply to arbitration and related proceedings.

(5) Proceedings are not excluded from the scope of this Convention by the mere fact that a state, including a government, a governmental agency or any person acting for a state, is a party thereto.

(6) Nothing in this Convention shall affect privileges and immunities of States or of international organisations, in respect of themselves and of their property.

Article 3

Exclusive choice of court agreements

For the purposes of this Convention—

a) “exclusive choice of court agreement” means an agreement concluded by two or more parties that meets the requirements of paragraph c) and designates, for the purpose of deciding disputes which have arisen or may arise in connection with a particular legal relationship, the courts of one Contracting State or one or more specific courts of one Contracting State to the exclusion of the jurisdiction of any other courts;

b) a choice of court agreement which designates the courts of one Contracting State or one or more specific courts of one Contracting State shall be deemed to be exclusive unless the parties have expressly provided otherwise;

c) an exclusive choice of court agreement must be concluded or documented—

ii) by any other means of communication which renders information accessible so as to be usable for subsequent reference;

d) an exclusive choice of court agreement that forms part of a contract shall be treated as an agreement independent of the other terms of the contract. The validity of the exclusive choice of court agreement cannot be contested solely on the ground that the contract is not valid.

Article 4

Other definitions

(1) In this Convention, “judgment” means any decision on the merits given by a court, whatever it may be called, including a decree or order, and a determination of costs or expenses by the court (including an officer of the court), provided that the determination relates to a decision on the merits which may be recognised or enforced under this Convention. An interim measure of protection is not a judgment.

(2) For the purposes of this Convention, an entity or person other than a natural person shall be considered to be resident in the State—

a) where it has its statutory seat;

b) under whose law it was incorporated or formed;

c) where it has its central administration; or

d) where it has its principal place of business.

CHAPTER II - JURISDICTION

Article 5

Jurisdiction of the chosen court

(1) The court or courts of a Contracting State designated in an exclusive choice of court agreement shall have jurisdiction to decide a dispute to which the agreement applies, unless the agreement is null and void under the law of that State.

(2) A court that has jurisdiction under paragraph 1 shall not decline to exercise jurisdiction on the ground that the dispute should be decided in a court of another State.

(3) The preceding paragraphs shall not affect rules—

a) on jurisdiction related to subject matter or to the value of the claim;

b) on the internal allocation of jurisdiction among the courts of a Contracting State. However, where the chosen court has discretion as to whether to transfer a case, due consideration should be given to the choice of the parties.

Article 6

Obligations of a court not chosen

A court of a Contracting State other than that of the chosen court shall suspend or dismiss proceedings to which an exclusive choice of court agreement applies unless—

a) the agreement is null and void under the law of the State of the chosen court;

b) a party lacked the capacity to conclude the agreement under the law of the State of the court seised;

c) giving effect to the agreement would lead to a manifest injustice or would be manifestly contrary to the public policy of the State of the court seised;

d) for exceptional reasons beyond the control of the parties, the agreement cannot reasonably be performed; or

e) the chosen court has decided not to hear the case.

Article 7

Interim measures of protection

Interim measures of protection are not governed by this Convention. This Convention neither requires nor precludes the grant, refusal or termination of interim measures of protection by a court of a Contracting State and does not affect whether or not a party may request or a court should grant, refuse or terminate such measures.

CHAPTER III - RECOGNITION AND ENFORCEMENT

Article 8

Recognition and enforcement

(1) A judgment given by a court of a Contracting State designated in an exclusive choice of court agreement shall be recognised and enforced in other Contracting States in accordance with this Chapter. Recognition or enforcement may be refused only on the grounds specified in this Convention.

(2) Without prejudice to such review as is necessary for the application of the provisions of this Chapter, there shall be no review of the merits of the judgment given by the court of origin. The court addressed shall be bound by the findings of fact on which the court of origin based its jurisdiction, unless the judgment was given by default.

(3) A judgment shall be recognised only if it has effect in the State of origin, and shall be enforced only if it is enforceable in the State of origin.

(4) Recognition or enforcement may be postponed or refused if the judgment is the subject of review in the State of origin or if the time limit for seeking ordinary review has not expired. A refusal does not prevent a subsequent application for recognition or enforcement of the judgment.