1. In international cases, this Convention shall apply to exclusive agreements conferring jurisdiction in civil or commercial matters. 2. For the purposes of Chapter II, a case is international unless the parties are domiciled in the same Contracting State and the relations of the parties and all other relevant elements of the dispute, irrespective of the place of the court chosen, are related only to that State. 3. For the purposes of Chapter III, this is a case abroad in which the recognition or enforcement of a foreign judgment is sought. There is some uncertainty as to how the Hague Convention will work with other international instruments, in particular the recast of the Brussels Regulation (“Regulation”). This EU regulation aimed to strengthen party autonomy by ensuring that “jurisdiction agreements cannot be circumvented by parties bringing an action before other courts in breach of those agreements”[22], i.e. that proceedings are first initiated in jurisdictions other than those chosen by the parties.

Since the Hague Convention contains a `right of way provision`, in cases concerning only parties established in the EU and/or parties residing in States other than the Hague Convention, the provisions of the Regulation should prevail where a contract provides for the exclusive jurisdiction of a Union court. However, in other cross-border cases brought before the courts of the Contracting State, the Hague Convention may prevail. Whichever instrument applies, the practical result in a particular case is likely to be the same. In addition, the Hague Convention may offer parties better protection against the risk of initiating parallel proceedings within the EU if they have chosen a non-European court to rule on their dispute. The Convention strives to be a global charter governing international jurisdictional agreements and decisions of national courts, and is promoted as an important step in the development of civil procedure. Despite these ambitions, the structure and conditions of the Convention have fundamental flaws that make it unsuitable for ratification by rule of law systems. Provisional safeguard measures are not provided for in this Convention. Nothing in this Convention shall require or prevent the granting, refusal or termination of interim provisional provisional measures by a court of a State Party and shall not affect the question whether a Party may request such measures or impose, refuse or terminate a court. However, party autonomy does not mean that an alleged international arbitration clause or jurisdiction agreement will be implemented. Rather, respect for party autonomy means the implementation of dispute settlement agreements that the commercial parties have actually concluded. Therefore, the provisions of the Convention and the New York Convention that govern the handling of challenges to the existence, validity or scope of dispute settlement agreements – and thus the consent of the parties to a particular decision-making forum – are of paramount importance. In this respect, the Convention does not correspond to the treatment of the autonomy of the Parties by the New York Convention.

Under the New York Convention, the existence, validity or scope of an arbitration agreement can generally be challenged in three phases: (a) by challenging the validity of the arbitration agreement, both in arbitration and in a dispute before the arbitral tribunal (and often elsewhere); (b) in the event of a challenge to an arbitral award in proceedings for annulment before the national courts supervising the arbitration proceedings at the seat of the arbitration; and (c) in the event of a challenge to the recognition of the award in proceedings before foreign courts outside the arbitral tribunal. The results of either of these challenges in a particular national court system (or arbitration) generally have no exclusive effect in other jurisdictions.3) Gary Born, International Commercial Arbitration 3797-3808, 3995-4000 (3rd ed. 2021). Therefore, the parties are neither required to arbitrate nor bound by an arbitral award, unless several independent investigations have been conducted into the existence and scope of meaningful consent to arbitration, including investigations conducted both by the arbitrators themselves and by the national courts of the recognition forum. eapil.org/2021/06/30/is-the-2005-hague-choice-of-court-convention-really-a-threat-to-justice-and-fair-play-a-reply-to-gary-born/ 2015 Norton Rose Fulbright survey surveyed more than 800 business consultants representing companies in 26 countries about litigation-related issues and concerns. About 25% of respondents believe that the number of disputes their company will face in the next 12 months will increase. “If given the choice, nearly half of defendants prefer to use arbitration as a means of resolving disputes, with a quarter preferring a dispute and about the same proportion saying, `It depends.` unless the chosen court refuses to remain competent. For the Convention, jurisdiction agreements must be “exclusive”, which means that under the Convention, a group of courts can also be chosen as long as they are located in the same country. For an agreement conferring jurisdiction, it is not necessary to expressly state that the agreement is exclusive; The name of a specific dish (set of) automatically makes it exclusive. (a) the court of origin has been determined by a non-exclusive agreement conferring jurisdiction; (b) there is no judgment of another court before which proceedings could be brought under the agreement on non-exclusive jurisdiction, nor is there any proceedings pending between the same parties before another court for the same plea; and (c) the court of origin was the first court seised.

1. A judgment of a court of a Contracting State designated by an exclusive agreement conferring jurisdiction shall be recognized and enforced in the other Contracting States in accordance with this Chapter. Recognition or enforcement may be refused only on the grounds set out in this Convention. 2. Without prejudice to the review necessary for the application of this Chapter, there shall be no review of the merits of the decision of the court of origin. The court seised shall be bound by the findings of fact on which the court of origin has based its jurisdiction, unless the judgment in absentia has been given. 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 deferred or refused if the decision is reviewed in the State of origin or if the time limit for requesting an ordinary review has not yet expired. A refusal shall not preclude a subsequent application for recognition or enforcement of the decision ….