U.S. implementation of the 2005 Hague Convention on Choice-of-Court Agreements.

Position:Proceedings of the One Hundred Third Annual Meeting of the American Society of International Law: International Law as Law - Discussion

This panel was convened at 2:45 p.m. on Friday, March 27, by its moderator, Alex Carballo of the Lauterpacht Center for International Law, who introduced the panelists: Keith Loken of the U.S. Department of State; David Stewart of Georgetown University Law Center; Louise Ellen Teitz of Roger Williams University School of Law; and Peter Trooboff of Covington & Buffing. *

REMARKS BY KEITH LOKEN ([dagger])

On January 19, 2009, the United States signed the Hague Convention on Choice of Court Agreements (Hague Convention). To date, Mexico is the only other country to have taken action with regard to the Convention, having acceded in 2007. However, it is expected that the European Community will sign the Convention next week in The Hague, and other nations such as Canada and Australia are reportedly considering how the Convention might be implemented in their domestic legal systems. The Convention will enter into force upon the deposit of a second instrument of ratification, acceptance, approval, or accession.

The Convention, adopted in 2005, was the product of a multi-year effort within the Hague Conference on Private International Law (HCOPIL) to negotiate a broader multilateral agreement on the recognition and enforcement of foreign judgments. For a variety of reasons, that goal could not be reached; the current Convention is a less ambitious but still important achievement. This would be the first time that the United States has become a party to a treaty on the recognition and enforcement of judgments. It has received strong support from domestic stakeholders, including legal associations and the Uniform Law Commission (formerly the National Conference of Commissioners on Uniform State Laws).

The Convention is based on three fundamental rules: (1) a court chosen by the parties has, and must exercise, jurisdiction to decide a covered dispute; (2) courts not chosen by the parties do not have jurisdiction and must dismiss proceedings to decide a covered dispute; and (3) a judgment rendered by a chosen court in a covered dispute must be recognized and enforced in the courts of other states party.

In keeping with the focus of this program, I will not dwell on the details of the various provisions of the Convention, but instead will mention some of the questions facing the U.S. Government as we consider how the Convention might be implemented under U.S. law.

Consistent with our past practice with respect to private international law conventions, the Choice of Court Convention would be handled domestically as a treaty and thus would need to be submitted to the Senate for its advice and consent to ratification.

A threshold question is whether the Convention would be considered to be non- self-executing. (The meaning of "non-self-executing" is often elusive; this was discussed at some length in yesterday's program on the Medellin v. Texas decision, and I don't intend to try to cover that ground again. I would just note that the term is used here to describe a treaty that does not by itself give rise to federal law that is directly enforceable in U.S. courts.) The Supreme Court's...

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