Arbitration or Litigation? Choice of Forum After the 2005 Hague Convention on Choice of Court Agreements
20 Pages Posted: 1 May 2009
Date Written: May 1, 2009
The possibility of wide ratification of and accession to the 2005 Hague Convention on Choice of Court Agreements presents important issues for those drafting international commercial contracts. Transactions lawyers have rather easily justified the inclusion of arbitration agreements in international commercial contracts because the New York Arbitration Convention insures both compliance with the agreement to arbitrate and the recognition and enforcement of any resulting arbitral award. When the Hague Convention becomes effective in a significant number of states, choice of court clauses will be more easily enforced, and court judgments will more easily recognized in other states. Thus, the choice between arbitration and litigation will hinge on the real differences between these two dispute settlement options, and not merely on the fact that one is more easily enforced than the other. This article compares the choices for both private parties and states under the Hague Convention with those existing under the New York Arbitration Convention.
Keywords: choice of court, choice of forum, arbitration, litigation, enforcement of judgments, party autonomy, Hague Convention, New York Convention, private international law, transnational contracts, international contracts, jurisdiction, recognition and enforcement of judgments
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