US Ratification of Hague Choice of Court Convention: Bad News from Across the Pond

von Peter Bert

We have regularly covered the Hague Convention of Choice of Court Agreements on this blog. From a German, and indeed from a European perspective, a major breakthrough in terms of practical relevance of the Convention would be the ratification of the convention by the United States, given that there currently is no treaty in place between Germany and its biggest non-European trading partner that deals with recognition of judgments. Ted Folkman on his blog lettersblogatory.com is probably the best source for coverage of the Convention’s road towards ratification in the United States. This is what he has to report:

I’ve been following the efforts to ratify the Hague Choice of Court Agreement Convention, COCA, for a long time. As readers will remember, the United States has signed the Convention but not ratified it. The hold-up has to do with disputes about how to implement the non-self-executing Convention in US law. For a summary, you may want to read this post from about a year ago. In summary: the bar and several academics have proposed a federal implementing statute analogous to the FAA, which implements the New York Convention. On the other hand, the Uniform Law Commission, which promulgates uniform laws for states to enact, has taken the view that the Convention should be implemented through a uniform law, supplemented by a federal statute, but with state law clearly in the driver’s seat. A working group of the ABA Section of International Law, led by Glenn Hendrix (I was involved in a very minor way), had proposed a “cooperative federalism” compromise that the ULC had viewed unfavorably on the grounds that it gave too much preemptive effect to federal law and made enforcement a question of federal rather than state law. Now I’ve learned that in November, a committee of the ULC has formally rejected the compromise proposal ...

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