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

HCCH PictureWe 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 Ted 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. It seems likely that this is the end of the line, for now, of US attempts to ratify COCA, as it does not seem that there will now be an effort to push the “federal-only” approach to implementation in Congress.

Attention will now turn to the Judgments Convention, currently being negotiated in the Hague. My initial reaction is that it’s unreasonable to think the US would ratify or even sign an eventual judgments convention if it cannot even ratify COCA, which is much less ambitious than a judgments convention. On the other hand, maybe having two conventions in play will create some opportunities for compromise that don’t exist now.

It’s also unclear how the change in administration will effect efforts to ratify COCA or how it will effect private international law generally. Is private international law going to be an area of focus in the State Department or the Justice Department over the next four years? Time will tell. I suspect we will hear nothing about it in the confirmation hearings for the nominees for Secretary of State and Attorney General.

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We have of course got used to bad news from across the pond in recent times. In addition to covering international judicial assistance on lettersblogatory.com, Ted also offers insightful political analysis, which you might find worth checking out from time to time.

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