The Proposed Hague Convention on Jurisdiction and Foreign Judgments: Trans-Atlantic Lawmaking for Transnational Litigation
Samuel P. Baumgartner
University of Akron
Samuel P. Baumgartner, THE PROPOSED HAGUE CONVENTION ON JURISDICTION AND FOREIGN JUDGEMENTS, Mohr Siebeck, Tuebingen, 2003
In June 1993, a small working group of the Hague Conference on Private International Law concluded that it would be desirable to negotiate a convention on the recognition and enforcement of foreign judgments in civil and commercial matters. The suggestion was quickly taken up by the Hague Conference and the scope of the future treaty was extended to the question of personal jurisdiction in international civil and commercial matters. With this extended scope, a considerable number of countries, including the United States, showed great interest in the negotiations of the proposed Convention. At the beginning of the new millennium, however, negotiations began to stall. As of today, the scope of the proposed treaty has been radically scaled back to the enforcement of forum selection clauses and the recognition and enforcement of judgments based on such clauses. There are a number of reasons for the - at best temporary - setback of the larger jurisdiction and judgments project. One of the larger issues has been a clash between the legal cultures of the United States and that of continental Europe.
In this book I argue that negotiators from the United States on the one hand and from continental Europe on the other arrived at The Hague with very different jurisprudential assumptions. I attempt to trace these assumptions both regarding the treatment of transnational litigation in general and with respect to personal jurisdiction in particular. I argue that, because of these differences in outlook, negotiating a treaty in this area requires time and significant cross-systemic education before lunging into narrow issues of personal jurisdiction and recognition of judgments can prove beneficial. I also add a case study to demonstrate that, absent such cross-systemic education, both the lack of a treaty and the presence of a treaty that is not based on such education can lead to unexpected and unsatisfactory results for all states involved. Thus, on a more general level, this book intends to contribute to our understanding of the process of making and applying law for transnational litigation involving the United States on the one hand and continental Europe on the other.
Date posted: May 6, 2005
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