Year
Stage
Relevant documentation
1997-1999 Special Commission convened to prepare a preliminary draft convention

The Special Commission meets on five occasions (17-27 June 1997, 3-13 March 1998, 10-20 November 1998, 7-18 June 1999 and 25-30 October 1999).

In preparation for the Special Commission, the Permanent Bureau draws up a report on international jurisdiction and foreign judgments in civil and commercial matters. In this report, it is submitted that a substantial reason underlying the lack of success of the 1971 Enforcement Convention is the absence of rules on direct international jurisdiction. The Permanent Bureau therefore expresses the view that the focus of discussions during the Special Commission should be on the issue of direct jurisdiction rather than the recognition and enforcement of judgments.

"International Jurisdiction and Foreign Judgments in Civil and Commercial Matters" (Prel. Doc. No 7 of April 1997)
 
  At its first meeting, the Special Commission focuses on grounds of jurisdiction, with the goal of developing a complete double convention. "Synthesis of the work of the Special Commission of June 1997 on international jurisdiction and the effects of foreign judgments in civil and commercial matters" (Prel. Doc. No 8 of November 1997)
 
  At its second meeting, the Special Commission focuses on:
  • the recognition and enforcement regime;
  • the scope of the convention;
  • specific grounds of jurisdiction (in more depth than at the first meeting); and
  • exceptions to the exercise of jurisdiction (lis pendens and forum non conveniens).
"Synthesis of the work of the Special Commission of March 1998 on international jurisdiction and the effects of foreign judgments in civil and commercial matters" (Prel. Doc. No 9 of July 1998)
 
  At its third meeting, the Special Commission focuses on:
  • the scope of the convention;
  • jurisdiction based on defendant’s forum, choice of court, appearance of defendant, contract, intellectual property disputes, tort, provisional and protective measures;
  • prohibited grounds of jurisdiction;
  • the regime for recognition and enforcement of foreign judgments;
  • grounds for refusal to recognise or enforce;
  • lis pendens and forum non conveniens;
  • uniform interpretation; and
  • form of the convention (mixed convention or double convention).
To assist experts in consolidating their discussions into a text, the Permanent Bureau prepares a preliminary draft outline, which synthesises the working documents proposed during the first two Special Commissions. A working document is also distributed at the start of the meeting by co-reporters addressing the issue of uniform interpretation.

The outcome of discussions is documented in a proposal by the Drafting Committee, which is distributed at the end of the meeting.
"Note on provisional and protective measures in private international law and comparative law" (Prel. Doc. No 10 of October 1998)

"Preliminary draft out line to assist in the preparation of a convention on international jurisdiction and the effects of foreign judgments in civil and commercial matters" (Info. Doc. No 2 of September 1998)

"Document submitted by the co reporters on the uniform interpretation of the proposed convention on the jurisdiction, recognition and the enforcement of judgments in civil and commercial matters" (Work. Doc. No 94)

"Proposal by the Drafting Committee" (Work. Doc. No 144).
 
  At its fourth meeting, the Special Commission discusses the preliminary draft using as a basis the proposal by the Drafting Committee distributed at the end of the third meeting. The Special Commission concedes that the convention will need to allow for courts to exercise jurisdiction based on their national law, albeit within limits (i.e., movement towards a mixed convention). The outcome of discussions is documented in a draft text that is provisionally adopted by the Special Commission at the end of the meeting. "Issues paper for the agenda of the Special Commission of June 1999", prepared by the Permanent Bureau in preparation for the fourth meeting of the Special Commission
 
  At its fifth and final meeting, the Special Commission adopts a preliminary draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters.

The preliminary draft provides for three kinds of jurisdiction (a mixed convention):

  • required jurisdiction (the "white list") – the court of origin may exercise jurisdiction on certain grounds listed in the convention, and if it does, the resulting judgment is entitled to recognition and enforcement in other Contracting States;
  • prohibited jurisdiction (the "black list") – the court of origin may not exercise a judgment based on certain other grounds listed in the convention, but if it does, the resulting judgment is not to be recognised;
  • undefined area (the "grey area") – in all other cases, the court of origin may exercise jurisdiction on grounds under its national law, and if it does, the resulting judgment may be recognised and enforced in accordance with the national law of the court addressed.
In adopting the preliminary draft, the Special Commission queries whether its provisions meet the needs of e-commerce and decides that the matter will be further examined by a group of experts. A group of experts subsequently meets (28 February – 1 March 2000) and agrees that it would be unwise to exclude electronic commerce from the substantive scope of the Convention.
"Preliminary draft Convention on jurisdiction and foreign judgments in civil and commercial matters, adopted by the Special Commission and Report by Peter Nygh & Fausto Pocar" (Prel. Doc. No 11 of August 2000)

"Electronic Commerce and International Jurisdiction" (Prel. Doc. No 12 of August 2000)

See also "Electronic Data Interchange, Internet and Electronic Commerce" (Prel. Doc. No 7 of April 2000, in particular Chapter III.C)