The effectiveness of the Hague Convention on Choice of Court Agreements in making international commercial cross-border litigation easier - A critical analysis

Abstract

The purpose of this paper is to critically analyse the effectiveness of the Hague Convention on Choice of Court Agreements in making international commercial cross-border litigation easier. Transnational litigation is so complicated that an international litigant feels like a trapped insect in a spider’s web. Now that there is a global Convention in this area, it would be useful to determine how successful the new instrument is in protecting and freeing the international litigants from the transnational litigation’s web of complexities. Interestingly, the Hague Convention mainly applies its rules to exclusive choice of court clauses or agreements only. This paper argues that the exclusive choice of court agreement feature of the Hague Convention will resolve the problem of parallel proceedings and make international litigation a bit more predictable, certain and cheaper. Apart from these benefits, it is not likely to make an international litigant’s life easier in any significant manner. It is argued that the Hague Convention’s success is impeded by its narrow scope of applicability to exclusive choice of court agreements only, a wide variety of exclusions from the scope of the Convention, a lack of provision for parties with no choice of court agreements, a convoluted declarations system, a lack of protection for small and medium-sized enterprises entering into standard form contracts online as business-consumers, inadequate provision for issues arising out of judicial corruption and no provision for civil procedure rules. The paper ends with a few recommendations, which if adopted, would enhance the effectiveness of the Hague Convention considerably. It concludes that international litigation, being the default dispute resolution mechanism, needs to be worked upon and improved, possibly through a broader and better global Convention.