Introduction

This contribution1 discusses the impact of the 2005 Hague Convention on Choice-of-Court Agreement2 (“the Hague Convention”) on the European practice relating to the enforcement of jurisdictional choices. The process relating to the ratification of this Convention by the European Union has now been concluded. The ratification is effected through the Council Decision dated 4 December 2014 on the Approval, on behalf of the European Union, of the Hague Convention.3 It is said that the adoption of the recast Brussels I Regulation No 1215/20014 (“Brussels I bis”) has “paved the way” for the ratification of the Hague Convention, by “ensuring coherence” between the two instrument.5 The intention of the Commission was that the Hague Convention should enter into force in the European Union on the same date of the entry into application of the Brussels I bis Regulation.6

The starting point of the analysis is the trilogy of cases from the European Court of Justice in Owusu,7Gasser8 and Turner,9 with the spin off case of West Tankers10 for the arbitration aspects. These cases are said to have generated serious problems that undermine the effectiveness of jurisdictional choices. Beyond the attempt of the European legislator to fix some of these problems in the Brussels I bis Regulation, it is now time to assess also the consequence of the entry into force of the Hague Convention,11 but this has finally not been achieved and the convention will enter into force probably during the second semester of 2015.12

1. Owusu: The Appointment of the Court of a Third State

The first case that has created difficulties for the effectiveness of choice-of-court agreements is Owusu.13 This case holds in substance that jurisdiction14 under Brussels I is mandatory: the court cannot decline jurisdiction under the forum non conveniens doctrine, even in favor of third-State courts. There is much discussion and uncertainty as to whether this ruling also precludes giving effect to an agreement appointing the courts of a third State, as there is no provision in the Regulation that permits the court of a Member State to decline jurisdiction in that situation.15 The Brussels I bis regulation does not resolve this problem, and may have even complicated the matter: in view of the new lis pendens rule in relation with the courts of third States,16 and of what is stated in the Preamble to the Regulation,17 it is possible that the new regulation gives effect to an agreement appointing the court of a third State only when proceedings have already been started before this court prior to the action being brought in the EU before the non-designated forum.18

Is the solution in the Hague Convention? To a certain extent, yes.19 When the parties have appointed the court of a third State which is a contracting party to the Hague Convention, the agreement will be effective and enforced in the EU under the Hague Convention.20 The Owusu issue will be gone, but only in relation to agreements appointing the courts of a Contracting State.21 The Hague Convention itself will not affect the choice-of-court agreements in favor of third States that are not party to the Hague Convention.

However, the Council Decision on the Approval of the Hague Convention may lend support to the interpretation that choice-of-court agreements in favor of third State courts are not governed by EU law but by domestic law. This interpretation seems to be acknowledge in the Explanatory Memorandum to the Council Decision, where is it stated that the Brussels I Regulation “does not govern” the enforcement in the European Union of choice-of-court agreement in favor of third State courts.22 The suggestion that the matter of enforcement of jurisdiction agreements in favor of third States is “not governed” by the Regulation may implicate that it is governed by national law, though again the matter is not entirely free from doubts.

2. Gasser: Choice-of-Court Agreements and Lis Pendens

The second controversial case is Gasser.23 This case is about the interrelation between choice-of-court agreements and lis pendens. The many problems raised by Gasser, and the new mechanism in the Brussels I bis Regulation that is meant to address these problems, have already been the subject of close scrutiny.24 In summary, both before and after the recast, the focus is on the issue of lis pendens, and on the need to avoid the risk of irreconcilable judgments : the only difference is that under Brussels I and Gasser, the priority is given to the court first seized,25 while under the new Brussels I bis Regulation, the priority is given to the designated court.26 In both regimes, there is only one court in the EU that has the right to decide whether the choice-of-court agreement is effective.27

Where does the Hague Convention stand on this delicate issue? The Council Decision on the Approval of the Hague Convention states that the new rules on choice-of-court agreements that have been inserted in the Brussels I bis Regulation have “prepared”28 or “paved the way”29 for the ratification of the Hague Convention, by “ensuring coherence” between the Union rules and the Convention rules. The Explanatory Memorandum to the Council Decision refers in this respect in particular to the new rules of the Brussels I bis Regulation that ensure “that choice-of-court agreements may not be circumvented by parties seizing other courts in violation of such agreements”.30

This could suggest that the Brussels I bis Regulation has borrowed from the Hague Convention the new rule of the regulation giving absolute priority to the designated court. Yet, quite surprisingly, the Hague Convention is silent on the issue of lis pendens. There is no rule in the Convention that gives priority to the appointed court to rule on the validity and enforceability of the choice-of-court agreement.31

Article 5 of the Convention provides that the designated court “shall have jurisdiction” (para. 1), and that it “shall not decline the exercise of jurisdiction on the ground that the dispute should be decided in a court of another State” (para. 2). The Explanatory Report on the Convention by Professors Hartley and Dogauchi explains that this provision precludes resorting to the lis pendens doctrine to decline jurisdiction in favor of another court.32 So, the designated court cannot decline jurisdiction only because it is the second court seized. There is no room for a Gasser type approach under the Hague Convention.

But this does not mean that under the Hague Convention, the designated court is, as in Brussels I bis, the only one which can rule on the validity and enforceability of the choice-of-court agreement. Under Article 6(a) of the Hague Convention, the suspension of the proceedings in the non-designated court is subject to the condition that the choice-of-court agreement is not “null and void”. Admittedly, the non-designated court must apply the law of the chosen court to assess the existence of a cause for which the agreement may be null and void.33 But the non-designated court has the power to rule itself on the matter.

So there is a Kompetenz-Kompetenz principle34 in the Hague Convention, but it produces only a positive effect, in the sense that the designated court is allowed to determine its own jurisdiction (unlike the solution in Gasser). Kompetenz-Kompetenz does not produce a negative effect in the Hague Convention, in the sense that there is no provision that precludes other courts from ruling on the validity and effect of the choice-of-court agreement. The jurisdiction of the designated court to rule on the effectiveness of the choice-of-court agreement is not exclusive. This is unlike in the Brussels I bis Regulation, where there is, apparently at least,35 such exclusivity.

Which approach is to be preferred? It is submitted that the Hague Convention is the better model, and that the Brussels I bis Regulation should have done explicitly36 what the Commission seems to believe (incorrectly) that it does, namely ensure coherence between the two regimes. The superiority of the Hague Convention system lies in the fact that it provides the flexibility that is needed in modern international litigation to prevent unfair forum shopping. The new Brussels I bis Regulation has solved only one side of the problem of unfair forum shopping, namely when a party brings proceedings outside of the designated forum under a perfectly valid choice-of-court agreement. In that case, as soon as the designated court becomes seized of the matter, the non-designated court must stay the proceedings.37

But it may create another form of forum shopping, namely the tactical invocation of a choice-of-court agreement whose validity may be questionable (or even a sham), or in respect of a claim which falls plainly outside the scope of the choice-of-court agreement. Under the Brussels I bis Regulation, it is said that the non-designated forum cannot assess the validity and applicability of the choice-of-court agreement.38 By contrast, the Hague Convention allows the non-designated court to rule on its own jurisdiction.

It has been suggested that the new EU regime is still a good system, because it gives absolute priority to the designated court: the parties would have a collateral right to have an agreement’s effect determined in the named court, and only there.39 But this is debatable: an agreement can found such right only when it is effective, and this is precisely the issue to be determined.40 As has been observed, “freedom to make an agreement is also freedom not to make an agreement”.41 So it is preferable that the non-designated court be allowed to review the effect of the choice-of-court clause, at least to a certain extent. As is often the case, the court practice could benefit from the arbitration practice: in some legal systems which, in the context of arbitration, apply or leave some room to the negative effect of Kompetenz-Kompetenz, the duty of the court to refer the parties to arbitration does not apply when the arbitration agreement is manifestly “null and void” or inapplicable.42

Ultimately, this is an area where the impact of the Hague Convention on the EU jurisdictional system could be the most important. Beyond the cases where the Hague Convention rules will displace those of the Brussels I bis Regulation,43 the Hague Convention approach may serve as a guide for the interpretation of the new rules of the Brussels I bis Regulation. This influence is acknowledged in the Council Decision on the Approval of the Hague Convention: as noted, it is stated in this Decision that the adoption of the Brussels I bis regulation paved the way for the approval of the Convention by “ensuring coherence” between the two regimes. This is a point on which the Commission has put a lot of emphasis in the Explanatory Memorandum to the Council Decision: the recent amendments to the Brussels I Regulation “ensure that the approach to choice-of-court agreements for intra-EU situations is consistent with the one that would apply to extra-EU situations under the Convention, once approved by the Union”.44 The same objective had already been stressed by the Commission in support of the proposal to change the regime of the Brussels I Regulation: the new rules on choice-of-court agreements of the Brussels I bis Regulation, including those that give priority to the chosen court to decide on its jurisdiction, have been introduced to “reflect the solutions established in the 2005 Hague Convention”.45

If the new Brussels I regime relating to choice-of-court agreement was only meant to anticipate on the Hague regime, the rules of the former should logically be construed, as far as possible, in light of the latter. The practical consequence of this influence may be that the priority given to the named court to rule on the effect of the choice-of-court agreement should not be treated as absolute. Reflecting the approach adopted in the Hague Convention, the non-chosen court should be entitled, under the Brussels I bis Regulation, to undertake at least a minimal review of the existence, validity and effect of the choice-of-court agreement.

This approach may actually find some support in the wording of Article 31(2) of the Brussels I bis Regulation. Pursuant to this provision, the duty of the non-chosen court to decline jurisdiction applies only if “an agreement as referred to in Article 25 confers exclusive jurisdiction” to the court of another Member State. It has been suggested that this wording leaves open the possibility for the non-chosen court to investigate for itself whether there is an agreement falling within Article 25 and whether it confers exclusive jurisdiction with respect of the particular dispute that is brought before the non-designated court.46 Allowing the non-designated court to conduct a full review of these matters while the designated court is also seized in parallel of the dispute would certainly go against the Commission’s policy objective in this matter.47 But it is submitted that the non-designated court should at least be entitled to verify that the choice-of-court agreement that is raised by the defendant is not manifestly inexistent, null and void or inapplicable to the dispute.48 Any other interpretation would lead to the absurd situation that an ill-advised defendant could block proceedings before any court seized under the ordinary rules of the Brussels I bis regime by invoking an alleged choice-of-court agreement which would be manifestly inexistent or ineffective in the case.49 Such a solution would be plainly at odds with the approach adopted by the Hague Convention, and would not meet the objective of ensuring coherence between the two regimes.

3. Turner and West Tankers: Anti-Suit Injunctions in Support of Choice-of-Court Agreements

The third highly contentious case which may have an impact on the effectiveness of jurisdictional choices is Turner,50 together with the spin off case of West Tankers.51 As is well known, these cases stand for the principle that the court of a Member State is precluded from restraining proceedings in another Member State, even in support of jurisdiction agreements. The anti-suit injunctions which are used in common law jurisdictions in support of the enforcement of jurisdictional choices have no role to play within the Brussels I regime.

What is the position on this matter under the Hague Convention? In theory, the need for an anti-suit injunction does not arise under this instrument: pursuant to Article 6 of the Convention, the non-designated court has the duty to suspend or dismiss the proceedings, unless one of the narrow exceptions applies. However, this is also the case under Brussels I, and the fact that the non-designated court has the duty in principle to decline jurisdiction does not prevent abusive forum shopping, as forcing the defendant to appear before the non-designated court to contest jurisdiction can be part of the oppression of such defendant. So the ratification of the Hague Convention will not remove entirely the risk of abusive practices in breach of jurisdiction agreements that are usually addressed in common law jurisdictions with anti-suit injunctions.52

The more delicate question is to assess the compatibility of the mechanism of anti-suit injunctions with the Hague Convention system. Is it open for the court of a Contracting State to this Convention to restrain proceedings in the court of another Contracting State? In Turner, the European Court of Justice has grounded the prohibition of anti-suit injunction essentially on the principle of mutual trust: the Brussels Convention, which is the predecessor to the Brussels I Regulation, “is necessarily based on the trust which the Contracting States accord to one another’s legal systems and judicial institutions. It is that mutual trust which has allowed a system of compulsory jurisdiction to be established, which all the courts within the purview of the Convention are required to respect… it is inherent to that system of mutual trust that, within the scope of the Convention, the rules on jurisdiction that it lays down, which are common to all the courts of the Contracting States, may be interpreted and applied with equal authority by each of them”.53

In West Tankers, the House of Lords had expressed the view that the principle of mutual trust could not be extended to arbitration as it is a matter that is excluded from the scope of the Regulation: according to the House of Lords, “in that field, there is no set of uniform Community rules, which is a necessary condition in order that mutual trust between the courts of the Member States may be established and applied”.54 The European Court was not convinced: even though the proceedings relating to the issue of an anti-suit injunction in support of arbitration do not come within the scope of the Regulation, they undermine “the effectiveness [of the Regulation]” when the injunction concerns proceedings before the court of a Member State which do come within the scope of the Regulation.55 For the European Court, “an anti-suit injunction… is contrary to the general principle which emerges from the case-law of the Court on the Brussels Convention, that every court seized itself determines, under the rules applicable to it, whether it has jurisdiction to resolve the dispute before it … [I]n no case is a court of one Member State in a better position to determine whether the court of another Member State has jurisdiction”.56 Some of the implications of West Tankers may have been indirectly overturned by the Brussels I bis Regulation which gives priority to the 1958 New York Convention and clarifies the scope of the arbitration exception,57 but the prohibition on anti-suit injunction may well have survived even when the injunction is used in support of arbitration.58

Going back to the Hague Convention, it should be observed that it is entirely silent on the issue of anti-suit injunctions, as are indeed the successive texts of the Brussels I regime. Two different models of interpretation could be articulated. Under one possible approach, the Hague Convention is neutral to the power of the court of the Contracting States to issue anti-suit injunctions. The principle of mutual trust would have no role to play under the Hague Convention as it is specific to the European judicial area. This principle would be strictly associated with the existence of a common core of legal principles and fundamental rights under the European legal order, and possibly also with to the duties of “sincere cooperation” and “full mutual respect” under Article 4(3) TEU.59 These considerations have no application in relation to third States, even when they are contracting parties to an instrument such as the Hague Convention.

Under another possible approach, the Hague Convention must be construed as precluding the court of a Contracting State from seeking to restrain proceedings before the courts of another Contracting State within the scope of the Convention. As indicated, Article 6 of the Convention gives the non-designated court the power to assess for itself if the choice-of-court agreement is null and void or ineffective for another reason. This rule could be construed as precluding the court of another Contracting State — in particular the designated court — from interfering with the power of the non-designated court to undertake its own assessment of the validity and effect of the clause. The principle of mutual trust may not be specific to the European judicial area.60 As the Turner-West Tankers cases suggest, the principle seems to find its source in the harmonization of the rules of jurisdiction. From this perspective, it could be said that the Hague Convention embodies a principle of mutual trust which is not unlike the principle which underpins the Brussels Convention (and the Brussels I (Bis) Regulation). Moreover, to the extent that the principle of mutual trust is also to be associated with the principle of mutual recognition of judgments,61 then again the Hague Convention would seem to be fertile ground for the principle of mutual trust to develop. Indeed, one of the main purposes of the Convention is to facilitate the recognition of judgments as between the Contracting States.62

However, the duty of the courts of the Contracting States to recognize and enforce each others judgments apply only to judgments given by the court designated in a choice-of-court agreement.63 There is no duty of the designated court to recognize judgments from a non-designated court in respect of the issue of (in)validity or effectiveness of the choice-of-court agreement. Is this a material distinction with the Brussels I regime64 that could justify allowing the courts of the Contracting States to the Hague Convention to issue anti-suit injunctions seeking to restrain proceedings before the non-designated court?65 Not necessarily. The principle of mutual trust, even if it may be associated with the mutual recognition of judgments,66 seems to go beyond that matter. It is primarily directed at the exercise of jurisdiction by the courts. As noted by the European Court of Justice, the prohibition on anti-suit injunctions derives from the acknowledgement that, when States have harmonized their rules of jurisdiction, these rules become common to all the courts of the Contracting States and “may be interpreted and applied with equal authority by each of them”, with the consequence that “in no case” is a court of one Contracting State “in a better position to determine whether the court of another” Contracting State has jurisdiction.67 These considerations would seem to be as much suitable in the context of the Hague Convention as it is under the Brussels I regime.

1
The oral form the presentation made on 23 May 2004 at the ICC Conference in Paris on Jurisdictional Choices in Time of Trouble has been preserved, subject that references to relevant authorities and legal writing have been added and updated.

2
On this Convention, see e.g. P. Beaumont, “Hague Coice of Court Agreements Convention 2005: Background, Negotiations, Anaysis and Current Status”, Journal of Private International Law, 2009, p.125 ; A. Bucher, “La Convention de La haye sur les accords d’élection de for”, RSDIP, 2006, p.29 s.; L. Usunier, “La Convention de La Haye du 30 juin 2005 sur les accords d’élection de for — Beaucoup de bruit pour rien?”, Rev. crit. DIP, 2010, p.37 ; C. Kessedjian, “La Convention de La Haye du 30 juin 2005 sur l’élection de for”, J.D.I., 2006, p.813.

3
O.J. 10.12.14, L353/5 (hereafter, “the Council Decision”). See also the original proposal of the Commission dated 30 January 2014, with Explanatory Memorandum, COM(2014) 46 final (hereafter, “Commission Proposition of the Council Decision”).

4
Regulation (EU) No 1215/2012 of the European Parliament and of the Council on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Recast).

5
See Recital 5 of the Proposed Council Decision (in its version of 23 September 2014).

6
See the version of 30 January 2014.

7
Case C-281/02, ECLI:EU:C:2005:120.

8
Case C-116/02, ECLI:EU:C:2003:657.

9
Case C-159/02, ECLI:EU:C:2004:228.

10
Case C-185/07, ECLI:EU:C:2009:69.

11
For an early discussion of the matter, see P. Briza, “Choice of Court Agreements: Could the Hague Choice of Court Agreement Convention and the Reform of the Brussels I Regulation be the Way Out of the Gasser-Owusu Desillusion”, Journal of Private International Law, 2009, p.537.

12
Pursuant to article 31 of the Convention, it shall enter into force on the first day of the month following the expiration of three months after the deposit of the second instrument of notification. Mexico has notified the Convention on 26 October 2007. Pursuant to article 2 of the Counsil Decision the deposit of the instrument of approval for the European Union shall take place within one month of 5 June 2015.

13
Case C-281/02, ECLI:EU:C:2005:120.

14
At least jurisdiction of the courts of the Member State of the domicile of the defendant under Article 2 of the Brussels I Regulation (now Article 4 of the Brussels I bis Regulation).

15
See the in-depth analysis of this issue in R. Fentiman, International Commercial Litigation, OUP, 2010, para. 11.105 et seq.

16
See Article 33 of the Brussels I bis Regulation, which provides the circumstances and conditions under which the court of a Member State may stay the proceedings in favor of the court of a third State. One of such conditions is that proceedings are pending before a court of a third State “at the time when a court in a Member State is seized of an action”.

17
See Recital 24, which provides that in assessing whether a stay in favor of the court of a third State should be granted, the court may “include consideration of the question whether the court of the third State has exclusive jurisdiction in the particular case in circumstances where a court of a Member State would have exclusive jurisdiction.”, 2013, p. 435

18
When this court happens to have jurisdiction under one of the other rules of the Brussels I bis regime (for instance, jurisdiction based on the domicile of the defendant under Article 4 or special jurisdiction under Article 7). This could be the consequence of the strict reading of Article 33 cited above: if the lis pendens rule embodied in this provision is meant to constitute (together with the related actions rule of Article 34) the only situation where jurisdiction can be declined in favor of the court of a third State, then the agreement appointing the court of a third State could be given effect only when the appointed court was already seized of the matter at the time that an action was brought in the European Union. This interpretation would be given further support if the “exclusive jurisdiction” of the court of a third State (Recital 12) is meant to include also the jurisdiction based on a choice-of-court agreement (and not only exclusive jurisdiction as to the subject-matter of the dispute under Article 24 of Brussels I bis: for this view, see S. Francq, article cited below). This interpretation is certainly not the only one that can be proposed of these provisions, and it is submitted that it is not the most preferable one, but it cannot be denied that the recast Regulation has not brought much clarity in an area which was already quite murky. For an analysis of these issues, see e.g. Ch. Chalas, “L’affaire Ferrexpo: baptême anglais pour l’effet réflexe des articles 22, 27 et 28 du règlement Bruxelles I”, Rev. Crit. DIP, 2013, p.359, at para. 50 ; D. Sindres, “Compétence — Règles ordinaires de compétence — Dispositions générales — Article 4 du règlement (UE) n° 1215/2012”, in Compétence judiciaire, reconnaissance et exécution des décisions en matière civile et commerciale”, Jurisclasseur — Droit international, p.16, para. 39, 2nd col. ; A. Nuyts, “La refonte du règlement Bruxelles I”, Rev. crit. DIP, 2013, p.1, at para. 5 ; H. Gaudemet-Tallon and C. Kessedjian, “La refonte du règlement Bruxelles I”, RTDeur, 2013, p.435, at p.441, para. 16-24 ; S. Francq, “Les clauses d’élection de for dans le nouveau règlement Bruxelles I bis”, in E. Guinchard (ed.), Le nouveau règlement Bruxelles I bis. Règlement n°1215/2012 du 12 décembre 2012 concernant la compétence judiciaire, la reconnaissance et l’exécution des décisions en matière civile et commerciale, Bruylant, 2014, p.107, at p.111-119 ; A. Layton, “The Brussels I Regulation in the International Legal Order: Some Reflections on Reflectiveness”, in E. Lein (ed.), The Brussels I Review Proposal Uncovered, BIICL, 2012, p.70, at p.80.

19
See R. Fentiman, International Commercial Litigation, OUP, 2010, para. 2.120; S. Francq, “Les clauses d’élection de for dans le nouveau règlement Bruxelles I bis”, in E. Guinchard (ed.), Le nouveau règlement Bruxelles I bis. Règlement n°1215/2012 du 12 décembre 2012 concernant la compétence judiciaire, la reconnaissance et l’exécution des décisions en matière civile et commerciale, Bruylant, 2014, p.107, at p.120.

20
This is the effect of Article 6 of the Convention, which provides that when certain conditions are satisfied, “a court of a Contracting State other than that of the chosen court shall suspend or dismiss proceedings to which an exclusive choice-of-court applies”.

21
Article 3(a) of the Convention makes clear that the Convention concerns exclusive choice-of-court agreements which designates the courts of a Contracting State. See S. Francq, “Les clauses d’élection de for dans le nouveau règlement Bruxelles I bis”, in E. Guinchard (ed.), Le nouveau règlement Bruxelles I bis. Règlement n°1215/2012 du 12 décembre 2012 concernant la compétence judiciaire, la reconnaissance et l’exécution des décisions en matière civile et commerciale, Bruylant, 2014, p.107, at p.120-122.

22
See Section I.3 of the Explanatory Memorandum of the Commission Proposition of the Proposed Council Decision. See also the discussion in relation to the proposed exclusion from the Convention of insurance contracts, at the end of Section 3.2.2.2, where it is stated that as a consequence of this exclusion the limits to choice-of-court agreements in favor of the courts of a third State which is a contracting party to the Convention will depend on EU or national law.

23
Case C-116/02, ECLI:EU:C:2003:657.

24
For an overview of the criticims raised in legal writing against Gasser, see R. Fentiman in U. Magnus & P. Mankowski, Brussels I Regulation, 2nd ed., selp, p.575-579, para. 50-58 ; see also R. Fentiman, “Parallel Proceedings and Jurisdiction Agreements in Europe”, in P. de Vareilles-Sommières, Forum Shopping in the European Judicial Area, Hart, 2007, p.27. For a critical analysis of the new rules of Brussels I bis on this matter, see e.g. S. Francq, “Les clauses d’élection de for dans le nouveau règlement Bruxelles I bis”, in E. Guinchard (ed.), Le nouveau règlement Bruxelles I bis. Règlement n°1215/2012 du 12 décembre 2012 concernant la compétence judiciaire, la reconnaissance et l’exécution des décisions en matière civile et commerciale, Bruylant, 2014, p.107, at p.140-143 ; A. Nuyts, “La refonte du règlement Bruxelles I”, Rev. crit. DIP, 2013, p.1, at para. 29-30 ; H. Gaudemet-Tallon and C. Kessedjian, “La refonte du règlement Bruxelles I”, RTDeur, 2013, p.435, at 446, para 36.

25
Article 27 of the Brussels I Regulation (44/2001).

26
Article 31(2) of the Brussels I bis Regulation.

27
Subject to the discussion below about the impact of the Hague Convention model.

28
Recital 5 of the Commission Proposition of the Council Decision.

29
Recital 5 of the Council Decision.

30
Commission Proposition of the Council Decision, p.3.

31
See R. Fentiman, International Commercial Litigation, OUP, 2010, para. 2.122.

32
Hartley & Dogauchi, Explanatory Report on the 2005 Convention on Choice of Court Agreements (2007), para 26 and 134.

33
See Article 6(a) of the Convention, which provides an exception to the obligation of the non-chosen court to suspend or dismiss the proceedings when the agreement “is null and void under the law of the State of the chosen court”.

34
On this principle, as applied in arbitration, see E. Gaillard & Y. Banifatemi, “Negative Effect of Competence-Competence: the Ruleof Priority in Favor of the Arbitrators”, in E. Gaillard & D. Di Petro (ed.), Enforcement of Arbitration Agreements and International Arbitral Awards: The New York Convention in Practice, 2008, p.257 ; G. Bermann, “The ‘Gateway’ Problem in International Commercial Arbitration”, The Yale Journal of International Law, 2012, Vol. 37, p.1, at p.18.

35
See discussion below.

36
It may do so impliedly, as discussed below.

37
This is the effect of Article 31(2) of the Brussels I bis Regulation. It should be noted that the obligation of the non-designated court to stay the proceedings under this provision arises only as from the moment that the designated court is effectively seized of the matter. Of course, the defendant who is sued before the non-designated court can still object to the jurisdiction of this court by relying on the choice-of-court agreement, but in this case the non-designated court will rule for itself on the validity and application of the choice-of-court agreement, while the effect of Article 31(2) is to reserve a decision on these points to the designated court (once it is seized of the matter).

38
As a consequence of the rule in Article 31(2). See S. Francq, “Les clauses d’élection de for dans le nouveau règlement Bruxelles I bis”, in E. Guinchard (ed.), Le nouveau règlement Bruxelles I bis. Règlement n°1215/2012 du 12 décembre 2012 concernant la compétence judiciaire, la reconnaissance et l’exécution des décisions en matière civile et commerciale, Bruylant, 2014, p.107, at p.140-143.

39
R. Fentiman, “Parallel Proceedings and Jurisdiction Agreements in Europe”, in P. de Vareilles-Sommières, Forum Shopping in the European Judicial Area, Hart, 2007, p.27, at p.38.

40
In his very insightful article quoted in the preceding note, Professor Fentiman does not overlook this issue. In response to the objection that there is circularity in this argument, in the sense that the agreement cannot found such right when the very question at issue is whether the jurisdiction agreement is effective at all, Professor Fentiman explains that “the answer lies in a distinction between the existence of a jurisdiction agreement (which is a matter of law) and the existence of a jurisdiction clause (which is a matter of fact). Any right to test the existence of such agreement does not presuppose that such an agreement exists. It depends merely upon the presence of a jurisdiction clause on the face of the documentation”. So, Professor Fentiman appears to accept that if “on the face of the documentation” it is manifest that there is no effective choice-of-court agreement (either because the agreement is manifestly inexistent or null and void or that the claim falls outside of the scope of such agreement), then there cannot be any collateral right of the parties to have the agreement’s effect determined in the named court.

41
A. Briggs, Agreements on Jurisdiction and Choice of Law, Oxford University Press, 2008, p.531, para 13.12 (noting that as a consequence, “any approach which makes the assumption, even if provisionally, that there is an agreement on choice-of-court, is not uncontroversial”).

42
See the discussion in G. Bermann, “The ‘Gateway’ Problem in International Commercial Arbitration”, The Yale Journal of International Law, 2012, Vol. 37, p.1, at p.15-19.

43
For an analysis of these situations, see R. Fentiman, International Commercial Litigation, OUP, 2010, para. 2.122-2127.

44
Commission Proposition of the Council Decision, Section 1.3..

45
See the Explanatory Memorandum to the Proposal of 14 December 2010 for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (COM/2010/0748 final).

46
See A. Dickinson, “The Revision of the Brussels I Regulation — Surveying the Proposed Brussels I bis Regulation — Solid Foundations but Renovation Needed”, Yearbook of Private International Law, 2010, vol. 12, p.247, at p.297.

47
Ibid.

48
Some further support for this interpretation can be found in Recital 22 of the Regulation, which provides that the rule of Article 31(2) “should not cover the situations where the parties have entered into conflicting exclusive choice-of-court agreements …”. In that case, the court which is not chosen in the agreement raised by the defendant will not be required to stay the proceedings in favor of the court designated in such agreement. This solution can only be justified if it is accepted in the first place that the non-designated court is empowered to undertake some kind of control on the effectiveness of the agreement appointing the court of another Member State. Here, the reason for the non-designated court to disregard the effect of the agreement is that there is another agreement that does appoint such court. But this is just one possible reason why there is not prima facie an effective agreement appointing the court of another Member State. There may be other reasons, such as when the choice-of-court agreement that is invoked by the defendant is manifestly inexistent, null and void, or inapplicable to the dispute. See A. Nuyts, “La refonte du règlement Bruxelles I”, Rev. crit. DIP, 2013, p.1, at para. 30.

49
Provided also that proceedings are brought effectively in the allegedly designated forum. However, the experience of the “Torpedo Actions” shows that litigants do not hesitate to launch proceedings in an incompetent forum to block proceedings in the other Member States. There may be a risk of development of “Italian Counter-Torpedo” with the added sinister feature that it would be used by bad faith litigants even after they have been sued in a court having jurisdiction under the ordinary rules of jurisdiction of the Regulation.

50
Case C-159/02, ECLI:EU:C:2004:228.

51
Case C-185/07, ECLI:EU:C:2009:69.

52
On the law and practice relating to anti-suit injunctions, see generally Thomas Raphael, The Anti-Suit Injunction, Oxford University Press, 2010.

53
Case C-159/02, ECLI:EU:C:2004:228, at para. 24-25.

54
Case C-185/07, ECLI:EU:C:2009:69, at para. 15.

55
Case C-185/07, ECLI:EU:C:2009:69, at para. 24.

56
Case C-185/07, ECLI:EU:C:2009:69, at para. 29.

57
See Article 73(2) and Recital 12 of the Brussels I bis Regulation.

58
See A. Nuyts, “La refonte du règlement Bruxelles I”, Rev. crit. DIP, 2013, p.1, para. 10, in fine ; L. d’Avout, “La refonte du règlement Bruxelles I”, Dalloz, 2013, p.1014, at para. 13. In Gazprom (Case C-536/13, ECLI:EU:C:2014:24/4), the Advocate-General Wathelet has expressed the opinion that the Brussels I bis Regulation has lifted the ban on the use of anti-suit injunctions in support of arbitration. It remains however to be seen if the European Court will share this view. See A. Nuyts, "L'exclusion de l'arbitrage", Journal des tribunaux, 2015, January issue.

59
For an in-depth analysis of the sources of the principle of mutual trust in the European legal system, see M. Roccati, Le rôle du juge national dans l’espace judiciaire européen — Du marché intérieur à la coopération civile, Bruylant, 2013, para. 143-162.

60
See A. Briggs, Agreements on Jurisdiction and Choice of Law, Oxford University Press, 2008, p.281, para. 7.81, who notes that the obligation of mutual trust is rather elusive, and does not find any obvious basis in the European Treaties or in other European legislative instruments.

61
This association is made in Recital 26 to the Brussels I bis Regulation, which provides that “[m]utual trust in the administration of justice in the Union justifies the principle that judgments given in a Member State should be recognized in all Member States without the need for a specific procedure”. On the relationship between mutual trust and mutual recognition of judgments, see R. Arenas Garcia, “Abolition of Exequatur: Problems and Solutions — Mutual Recognition, Mutual Trust and Recognition of Foreign Judgments: Too Many Words in the Sea”, Yerbook of Private International Law, 2010, selp, p.360.

62
See Hartley & Dogauchi, Explanatory Report on the 2005 Convention on Choice of Court Agreements (2007), para. 164, who note that Article 8 of the Convention, which expresses the principle that a judgment given by a court in a Contracting State designated in an exclusive choice-of-court agreement must be recognized and enforced in other Contracting States, is a “key provision” in the Convention.

63
Article 8(1) of the Hague Convention.

64
Under the Brussels I regime, the rules relating to the recognition of judgments apply to a judgment by which a court declines jursidiction on the basis of a jurisdiction clause appointing the court of another State, and they cover also the findings made by the court in respect of the validity of the clause: ECJ, Gothaer, Case C-456/11, ECLI:EU:C:2012:719. The same principle may have to be applied in respect of the ruling of the non-designated court on the (in) validity of the choice-of-court agreement. But the application of these rules that relate to the recognition of judgments must of course be combined with the new rules of Brussels I bis relating to the priority of the designated court to rule on its own jurisdiction when such court is effectively seized of the matter. See above, section II.

65
But not against the designated court. Indeed, the Hague Convention could at least support the proposition that the non-designated court is precluded from issuing an injunction that seeks to restrain proceedings before the designated court.

66
See Recital 26 of the Brussels I bis Regulation, cited above.

67
See the quotes from Turner and West Tankers above.