The Hague Choice of Court Convention and federal power over state courts.

Authorde la Torre, Jordi
  1. Introduction. II. Scope and Effects of the Convention III. Congressional Source of Power A. The Commerce Power B. The Treaty Power IV. Limitations on Congressional Power Rooted in State Sovereignty A. Federalism and the Treaty Power B. 'Commandeering' of State Courts in Federal Cases C. Federal Power Over State Court Procedures in Nonfederal Cases D. Professor Bellia's Argument Against Procedural Regulation E. The Greater-Includes-the-Lesser Argument F. Alternative Arguments that Support the Implementation of the Convention G. Federal Regulation of State Court Jurisdiction V. Conclusion I. INTRODUCTION

    In 2009, the United States became a signatory to the Hague Convention on the Choice of Court Agreements (the Convention, (1)) which establishes a uniform rule for the enforcement of exclusive choice of court agreements in civil or commercial matters in international cases. (2) This Note focuses on the constitutional issues that would arise if Congress enacted a statute to implement the Convention. Because an implementing statute would impose obligations on state institutions (state courts), it raises several federalism issues of importance in the U.S. system of government. Ultimately, however, federalism is not a bar to legislation implementing the Convention.

    Under the Supremacy Clause, state courts are required to adjudicate federal substantive law, provided they have appropriate jurisdiction. (3) The Convention could be interpreted as substantive regulation of contract law governing the enforcement of forum-selection clauses in international commercial agreements. This is the approach the Court took in Southland v. Keating, in the related context of enforcement of arbitration clauses mandated by the Federal Arbitration Act. (4) Alternatively, federalism principles do not bar the regulation of state court procedures the Convention would arguably impose, provided Congress acts pursuant to its enumerated powers. Congress has the power to preempt state court procedures when state courts adjudicate federal substantive law. Furthermore, the procedural requirements that would be imposed by legislation implementing the Choice of Court Convention are analogous to the requirements imposed by the Hague Service Convention, which the Supreme Court, in Schlunk, assumed applied in state courts hearing state law cases even though they were entirely procedural. (5)

    Professor Bellia argues that Congress cannot constitutionally impose procedural requirements upon state courts when they adjudicate state law claims. Even if Bellia is right, Congress could obviate his argument by a strategy of adopting as federal law the substantive state law underlying the disputes to which the Convention would apply. Congress would then have more latitude, even under Bellia's view, to

    impose its choice of procedures. Also, if Congress could do this, it would also have the power to impose procedures without federalizing substantive law, because there would be no more harm to state sovereign interests (the relevant metric). Bellia's arguments, however, may not even apply to this situation, because no procedural restrictions are imposed on state courts beyond the obligation to hear certain cases and to dismiss others. State courts would remain free to apply their own procedures to all the cases they do hear.

    The requirement that state courts, in states other than the state of the chosen court, dismiss the cases is consistent with the long-established practice of Congress to deprive state courts of jurisdiction over cases removed to federal court, even if nonfederal law governs some of these cases.

    This Note starts in Part II by describing the scope of the Convention. Part III analyzes the possible sources of congressional power to implement the Convention: the Commerce Power and the Treaty Power. In Part IV, the Note turns to the federalism arguments rooted in state sovereignty that may be used against the Convention because it regulates state courts. One such argument is the anti-commandeering doctrine, which favors state sovereignty over congressional control of state legislative and executive institutions. This Note analyzes a line of Supreme Court cases that defines the obligations of state courts with respect to federal substantive claims and procedures, finding that an implementing statute would fit within the framework articulated by the Court. The Note also rejects Professor Bellia's arguments. Even if Bellia's arguments are accepted, however, they could be obviated for purposes of implementing the Convention. Finally, this Note addresses the issue of congressional power to deprive state courts of jurisdiction to hear state law cases. Part IV concludes.


    The Convention sets uniform guidelines for when the courts of a state that is party to the Convention may assert jurisdiction over particular disputes. Under the Convention, chosen courts of a Contracting State "shall have jurisdiction to decide [the] dispute ... unless the agreement is null and void under the law of that State" (6) and they "shall not decline to exercise jurisdiction on the ground that the dispute should be decided in a court of another State." (7) Courts of Contracting States other than that of the chosen court "shall suspend or dismiss" the case unless one of a narrow set of exceptions applies. (8) For purposes of the Convention, "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 ... are connected only with that State." (9)

    The Convention explicitly excludes from its scope those agreements "to which a natural person acting primarily for personal, family or household purposes (a consumer) is a party," as well as employment contracts. (10) Certain subject matters are also explicitly excluded from the scope of the Convention. Most importantly, "claims for personal injury brought by or on behalf of natural persons" are categorically excluded. (11) Also excluded are non-contractual "tort or delict claims for damage to tangible property." (12) The Convention would have two effects that may have implications for the U.S. federal system: (1) the Convention would require courts in non-chosen states to "suspend or dismiss" the case, even if under state law they would have been willing and able to hear it, (13) and (2) the Convention would prevent courts in the state of the chosen court to dismiss cases under the doctrine of forum non conveniens. (14) Some states merely treat a forum-selection clause as one factor in the forum non conveniens analysis. (15) In these states, the rule imposed by the Convention would be inconsistent with state practice.


    To assess the validity of federal legislation, the first question is whether a statute falls within the scope of one of Congress's constitutionally enumerated powers. (16) To implement the Convention, the best candidates are the Commerce Power (17) and the Treaty Power. (18) They both provide a strong constitutional basis for implementing the Convention.

    1. The Commerce Power

      The Commerce Clause authorizes Congress to "regulate Commerce with foreign Nations, and among the several States." (19) In one of the first Supreme Court opinions interpreting the scope of the power conferred by the Clause, Chief Justice Marshall explained that the power to regulate commerce is the power "to prescribe the rule by which commerce is to be governed." (20) When the Court had another chance in 2012 to define the outer boundaries of the Commerce Power, even those justices that favored the most restrictive view quoted Marshall's definition approvingly, as consistent with the original understanding of the Constitution. (21) Prescribing uniform rules to govern interstate or international commercial transactions is therefore at the core of the Commerce Power as originally understood. (22)

      The expansion of industrial activity marked the start of a new era of federal regulation over the national economy, (23) which prompted the Supreme Court to develop an elaborate doctrine to analyze which activities Congress may regulate pursuant to its Commerce Power. (24) First, Congress may regulate the channels of interstate commerce. (25) Second, Congress may "regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce." (26) Finally, Congress may regulate those activities that substantially affect interstate commerce. (27) In United States v. Lopez, (28) the Court employed this framework to strike down the Gun-Free School Zones Act of 1990, which forbade the possession of firearms in school zones. The Court initially rejected that the regulation fell within the first two categories. (29) As to the third, it found that the possession of guns in school zones, with no specific interstate commerce jurisdictional hook, is a purely intrastate noneconomic activity, with no plausible connection to commerce.

      Along the same lines, in United States v. Morrison (31) the Court struck down the civil remedy provision of the Violence Against Women Act, which provided a federal civil remedy to victims of gender violence. First, the Court relied on the noneconomic nature of the activity regulated. (32) Second, the Court again relied on the lack of a jurisdictional hook that limited the reach of the statute to activity having a plausible connection with interstate commerce. (33) The Court refused to adopt a long causal chain of inferences between the violent act and its possible effects upon interstate commerce as a justification for the statute because it would lead to the obliteration of "the Constitution's distinction between national and local authority." (34) Relying on this framework, Professor Bellia has argued that Congress' power to generally regulate litigation is more doubtful than its power to directly regulate economic...

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