The Hague Convention on Choice of Court Agreements: The United States Joins the Judgment Enforcement Band

Adler, Matthew H., Zarychta, Michele Crimaldi | January 1, 2006

In 2005, the United States signed a treaty that, if ratified, would be the United States’ first-ever international agreement on judgment enforcement. The treaty provides that (a) where two commercial parties elect to resolve disputes between them in a particular forum, and (b) a judgment issues from that forum, then (c) all member states must enforce the judgment. It is a document driven by party autonomy; absent a choice of court agreement (in U.S. parlance, a choice of forum clause), the treaty has no meaning or applicability. The treaty’s signing was the end of a rigorous journey. The United States has been a party to a treaty on arbitration enforcement, and other nations have been parties to regional agreements on court judgments, but until now the twain have not met: there has been no agreement involving both the United States and court judgments. The new treaty, called the Convention on Choice of Court Agreements (the “Convention”), is a much scaled-down version of the original U.S. plan. Hoping to build a skyscraper, the United States has succeeded in constructing, at most, a low hut. The goal was to create a treaty that would, with limited exception, allow successful U.S. litigants to collect money by enforcing U.S. judgments against their opponents’ foreign assets. The new agreement fulfills this goal, allowing businesses that select a particular forum in their contract and win judgment in that forum to seek to collect on that judgment in the territory of another signatory to the new agreement. All others–non-commercial parties, consumers, human rights advocates, and even those businesses that obtain a court judgment from a forum other than one selected in their contract–remain excluded by any enforcement treaty. The Convention is, in some sense, a great leap forward for the protected few, and in another sense, an admission of failure for a larger international initiative.