Jurisdiction Project

Jurisdiction Project

 

About the Jurisdiction Project

In 1992, the Hague Conference on Private International Law (HCCH) commenced work on two key aspects of private international law in cross-border litigation in civil and commercial matters: the international jurisdiction of courts; and the recognition and enforcement of foreign judgments (the Judgments Project). While the original objective of the Project was to harmonise the rules in both areas through one single convention, the Project was subsequently scaled down to focus only on international cases involving choice of court agreements. This in turn led to the conclusion of the Convention of 30 June 2005 on Choice of Court Agreements (2005 Choice of Court Convention). For more information on the 2005 Choice of Court Convention, see the Choice of Court Section.

In 2011, at the request of the Council on General Affairs and Policy of the HCCH (CGAP), work was undertaken to study recent developments in the field with the aim to assess the possible merits of resuming work in this area. It was decided to strive for a more general instrument on recognition and enforcement of foreign judgments that would provide for a wider set of bases for their circulation among Contracting States, without prescribing any rules on “direct” jurisdiction. Additionally, it was decided to resume the work on jurisdiction, including exorbitant grounds and lis pendens / declining jurisdiction, upon the conclusion of the future instrument. This work eventually culminated in the conclusion of the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019 Judgments Convention). For more information on the 2019 Judgments Convention, see the Judgments Section.

With the successful conclusion of the 2019 Judgments Convention, the focus of the normative work of the HCCH in the area of civil and commercial law has now turned again to the question of jurisdiction: on which grounds should the parties to a civil or commercial dispute be able to seise the courts of a certain State; on which grounds can a State exercise jurisdiction in civil and commercial matters; how can harmonised rules in this area reduce the risk of parallel litigation in multiple States?

The search for an answer to these questions was put on hold during the negotiations of both the 2005 Choice of Court Convention and 2019 Judgments Conventions; the work of the HCCH on this last piece of the puzzle has now begun.

Mandate

In 2011, CGAP concluded that an Experts’ Group should be established to assess the possible merits of resuming the Judgments Project.

In 2012, CGAP concluded that a Working Group should be established, with the initial task of proposing provisions for inclusion in a future instrument relating to the recognition and enforcement of foreign judgments. Furthermore, CGAP requested that work also be undertaken by an Experts’ Group on the desirability and feasibility of developing provisions in relation to matters of jurisdiction (including parallel proceedings) in this or another instrument.

The Experts’ Group met on two different occasions, once in 2012 and once in 2013, to discuss the desirability and feasibility of making provisions in relation to matters of jurisdiction (including parallel proceedings) in an instrument dealing with both international jurisdiction and recognition and enforcement of foreign judgments or in a separate instrument.

Later in 2013, it was decided that the Experts’ Group should resume its work once an instrument addressing recognition and enforcement was complete.

Between 2014 and 2018, CGAP repeatedly reiterated that work relating to direct jurisdiction (including exorbitant grounds and lis pendens / declining jurisdiction) should be resumed by the Experts’ Group after the conclusion of the future instrument on recognition and enforcement.

In 2019, CGAP confirmed the mandate given to the Permanent Bureau to plan a further meeting of the Experts’ Group addressing matters relating to jurisdiction with a view to preparing an additional instrument. Further to this request by CGAP, a further meeting of the Experts' Group was in February 2020.

In 2020, CGAP mandated the Permanent Bureau to make arrangements for two further meetings of the Experts’ Group prior to the 2021 meeting of CGAP. As mandated, the Experts’ Group met twice, once in 2020 and once in 2021, and concluded its work.

In 2021, CGAP mandated the establishment of a Working Group on matters related to jurisdiction in transnational civil or commercial litigation (WG on Jurisdiction) and invited the Permanent Bureau to make arrangements for two Working Group meetings to be held before the 2022 meeting of CGAP. The WG on Jurisdiction was tasked to proceed, in an inclusive and holistic manner, with an initial focus on developing binding rules for concurrent proceedings (parallel proceedings and related actions or claims) acknowledging the primary role of both jurisdictional rules and the doctrine of forum non conveniens, notwithstanding other possible factors, in developing such rules. As mandated, the WG on Jurisdiction met twice, once in October 2021 and once in February 2022, to commence work on the development of draft provisions on parallel proceedings, to further inform policy considerations and decisions in relation to the scope and type of any new instrument, and to formulate the basic core structure of the possible future Convention.

In 2022, CGAP mandated the Permanent Bureau to convene two further meetings for the WG on Jurisdiction before the 2023 meeting of CGAP, with intersessional work as required. At the two meetings, which took place in September 2022 and February 2023, the WG on Jurisdiction made further progress on the development of draft provisions on parallel litigation in civil or commercial matters (which may occur when separate proceedings are instituted before the courts of different States).

In 2023, CGAP mandated the Permanent Bureau to convene two further meetings for the WG on Jurisdiction before the 2024 meeting of CGAP, with intersessional work as required. The WG meetings took place in September 2023, in Buenos Aries, Argentina, and in January 2024 in The Hague, the Netherlands. During these meetings, the WG made further progress on the development of draft provisions on parallel litigation in civil or commercial matters (which may occur when separate proceedings are instituted before the courts of different States).

In 2024, CGAP mandated the Permanent Bureau to convene two further meetings for the WG on Jurisdiction before the 2025 meeting of CGAP, with intersessional work as required.

Bibliography

Key documents on the Jurisdiction Project:

Recent developments (following the Diplomatic Session in 2019)

• Conclusions and Decisions adopted by CGAP of March 2024 (paras 4-7)
• Working Group on Jurisdiction: Report of 2024 (Prel. Doc. No 2 of February 2024)
• Conclusions and Decisions adopted by CGAP of March 2023 (para. 9)
• Working Group on Jurisdiction: Report (Prel. Doc. No 2 of February 2023)
• Conclusions & Decisions adopted by CGAP of March 2022 (para. 7)
• Report of the Working Group on Jurisdiction (Prel. Doc. No 7 of February 2022)
• Conclusions & Decisions adopted by the Council of March 2021 (paras. 7 to 9)
• Report of the Jurisdiction Project (Prel. Doc. No 3 of February 2021)
• Conclusions & Decisions adopted by the Council of March 2020 (paras. 12 and 13)

Diplomatic Session (2019) 

• Conclusions and Recommendations adopted by the Council of March 2019 (para. 5)
• “Note on reconsidering “marine pollution and emergency towage and salvage” within the scope of the draft Convention on the recognition and enforcement of foreign judgments in civil or commercial matters” (Prel. Doc. No 12 of June 2019)
• “Limitation period on the enforcement of foreign judgments in the context of the 2018 draft Convention” (Prel. Doc. No 11 of May 2019)
• “Note on ‘common courts’ in Article 4(5), (6) of the 2018 draft Convention” (Prel. Doc. No 7 of April 2019)
• “Treatment of penalty orders that are imposed on the non-compliance with non-monetary judgments under the 2018 draft Convention” (Prel. Doc. No 3 of February 2019)
• “The possible exclusion of anti-trust matters from the Convention as reflected in Article 2(1)(p) of the 2018 draft Convention” (Prel. Doc. No 2 of December 2018) 

Development of the Judgments Convention (2013-2018) 

Special Commission meetings (2016-2018):

• Conclusions and Recommendations adopted by the Council of March 2018 (para. 5)
• “Note on common courts in Article 22 of the February 2017 draft Convention” (Prel. Doc. No 9 of October 2017)
• “Note on the possible exclusion of privacy matters from the Convention as reflected in Article 2(1)(k) of the February 2017 draft Convention” (Prel. Doc. No 8 of November 2017)
• “Note on the concept of ‘Purposeful and Substantial Connection’ in Article 5(1)(g) and 5(1)(n)(ii) of the February 2017 draft Convention” (Prel. Doc. No 6 of September 2017)
• Conclusions and Recommendations adopted by the Council of March 2017 (para. 7)
• “Note on Article 7(1)(c) of the 2016 preliminary draft Convention” (Prel. Doc. No 5 of December 2016)
• “Note on Article 1(1) of the 2016 preliminary draft Convention and the Term ‘Civil or Commercial Matters’” (Prel. Doc. No 4 of December 2016)
• Conclusions and Recommendations adopted by the Council of March 2016 (para. 13)

Working Group meetings (2013-2015):

     Working Group meeting 5:

• “Report of Working Group” (26-31 October 2015)
• “Comparative Note on lis pendens in the Recognition and Enforcement of Foreign Judgments” (October 2015)
• “Comparative Note on Time Specification” (September 2015)
• “Comparative Studies of Jurisdictional Gaps and Their Effect on the Judgments Project” (July 2015)
• “Reflection Paper on the Relationship between the Future Judgments Convention and the Convention” (May 2015)
• Conclusions and Recommendations adopted by the Council of March 2015 (para. 4)

     Working Group meeting 4:

• “Report of Working Group” (6 February 2015)
  
• “Comparative Tables on Grounds of Jurisdiction” (January 2015)
• “Ongoing work on judgments – Choice of Court Convention and Judgments Project” (Prel. Doc. No 7A of January 2015)

     Working Group meeting 3:

• “Report of Working Group” (10 October 2014)
• “Comparative Tables on Grounds of Jurisdiction” (September 2014)
• Conclusions and Recommendations adopted by the Council of April 2014 (para. 6)
• “Ongoing work on judgments – Choice of Court Convention and Judgments Project” (Prel. Doc. No 7 of February 2014)

     Working Group meeting 2:

• “Working Group Record of Discussion” (28 February 2014)
• “Report of Working Group” (28 February 2014)
• “Research Paper on Personal Jurisdiction and Forum non Conveniens in the Enforcement Context” (February 2014)

     Working Group meeting 1:

• “Report of the Working Group meeting” Annex 1 (20 February 2013)
• Note 1: “Annotated Checklist of Issues to be Discussed by the Working Group on Recognition and Enforcement of Judgments” (January 2013 for Working Group meeting)

Preparation for the continuation of the Judgments Project (2010-2013)

• “Process Paper on the Continuation of the Judgments Project” (August 2013)
• Conclusions and Recommendations adopted by the Council of April 2013 (para. 8)
• “Ongoing work on international litigation” (Prel. Doc. No 3 of March 2013)

Experts’ Group meeting 2

• “Report of Experts’ Group” Annex 2 (23 February 2013)
• Note 2: “Issues Paper on Matters of Jurisdiction (including parallel proceedings” (January 2013 for Experts’ Group meeting)

Experts’ Group meeting 1

• Conclusions and Recommendations adopted by the Council of April 2012 (para. 18)
• “Ongoing work on international litigation and possible continuation of the Judgments Project” (Prel. Doc. No 5 of March 2012)
• Conclusions and Recommendations of the Experts’ Group on Possible Future Work on Cross-Border Litigation in Civil and Commercial Matters (of 14 April 2012)
• “Background Note” (drawn up by the Permanent Bureau of March 2012, for the first Expert Group meeting)
• Conclusions and Recommendations adopted by the Council of April 2011 (para. 15)
• “Review of the Activities of the Conference in regard to the Convention on Choice of Court Agreements” (Prel. Doc. No 12 of March 2011)
• Conclusions and Recommendations adopted by the Council of April 2010
• “Continuation of the Judgments Project” (Prel. Doc. No 14 of February 2010)

The development of the Choice of Court Convention (2002-2005)

• “The future Convention on exclusive choice of court agreements and arbitration” (Prel. Doc. No 32 of June 2005)
• “The American instruments on private international law - a paper on their relation to a future Hague Convention on exclusive choice of court agreements” (Prel. Doc. No 31 of June 2005)
• “Note on forms for the recognition and enforcement of a foreign judgment” (Prel. Doc. No 30 of June 2005)
• “The relationship between the Judgments Project and certain regional instruments in the arena of the Commonwealth of Independent States” (Prel. Doc. No 27 of April 2005)
• “The relationship between the judgments project and other international instruments” (Prel. Doc. No 24 of December 2003)
• “Mechanisms for the transfer of cases within federal systems” (Prel. Doc. No 23 of October 2003)
• “Report on the work of the Informal Working Group on the Judgments Project, in particular on the preliminary text achieved at its third meeting of March 2003” (Prel. Doc. No 22 of June 2003)
• “Report on the Second Meeting of the Informal Working Group on the Judgments Project of January 2003” (Prel. Doc. No 21 of January 2003)
• “Report on the first meeting of the Informal Working Group on the Judgments Project of October 2002” (Prel. Doc. No 20 of November 2002)
• “Reflection Paper to Assist in the Preparation of a Convention on Jurisdiction and Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters” (Prel. Doc. No 19 of August 2002) 
• “Choice of court agreements in international litigation: their use and legal problems to which they give rise in the context of the interim text” (Prel. Doc. No 18 of February 2002)
• “The impact of the Internet on the Judgments Project: thoughts for the future” (Prel. Doc. No 17 of February 2002)

Response to the Preliminary Draft Convention (2000-2001)

• “Some reflections on the present state of negotiations on the judgments project in the context of the future work programme of the Conference” (Prel. Doc. No 16 of February 2002)
• Interim Text - Summary of the Outcome of the Discussion in Commission II of the First Part of the Diplomatic Conference (6-20 June 2001), prepared by the Permanent Bureau and the Co-reporters
• “Informational note on the work of the informal meetings held since October 1999 to consider and develop drafts on outstanding items” (Prel. Doc. No 15 of May 2001)
• “Comments on the preliminary draft Convention, adopted by the Special Commission on 30 October 1999, and on the Explanatory Report by Peter Nygh and Fausto Pocar” (Prel. Doc. No 14)
• “Report of the experts meeting on the intellectual property aspects of the future Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, Geneva, February 2001” (Prel. Doc. No 13 of April 2001)
• “Conclusions of the Special Commission of May 2000” (Prel. Doc. No 10 of June 2000)
• “Electronic Commerce and International Jurisdiction, Ottawa 2000, Summary of discussions” (Prel. Doc. No 12 of August 2000)

Preparation of a Preliminary Draft Convention (1997-1999) 

• “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)
• “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
• “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)
• “Report on the preliminary draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, drawn up by Peter Nygh and Fausto Pocar” (excerpt from the Proceedings of the Twentieth Session - Judgments)
• “Note on provisional and protective measures in private international law and comparative law” (Prel. Doc. No 10 of October 1998)
• “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 March 1998)
• “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)
• “International jurisdiction and foreign judgments in civil and commercial matters” (Prel. Doc. No 7 of April 1997, revised translation of October 1997
• See also “Electronic Data Interchange, Internet and Electronic Commerce” (Prel. Doc. No 7 of April 2000, in particular Chapter III.C)

Preliminary work (1992-1996)

• Final Act of the Eighteenth Session, Part B, No 1 (extract only)
• “Conclusions of the second Special Commission meeting “Conclusions of the second Special Commission meeting” (Prel. Doc. No 6 of August 1996)
• “A case for The Hague (document submitted by the Swiss delegation)” (Prel. Doc. No 5 of June 1996)
• “Note on the recognition and enforcement of decisions in the perspective of a double convention with special regard to foreign judgments awarding punitive or excessive damages” (Prel. Doc. No 4 of May 1996)
• “Note on the question of forum non conveniens in the perspective of a double convention on judicial jurisdiction and the enforcement of decisions (+ annexes)” (Prel. Doc. No 3 of April 1996)
• “Conclusions of the Special Commission of June 1994 on the question of the recognition and enforcement of foreign judgments in civil and commercial matters” (Prel. Doc. No 2 of December 1995)
• “Annotated checklist of issues to be discussed at the meeting of the Special Commission of June 1994” (Prel. Doc. No 1 of May 1994)
• Final Act of the Seventeenth Session, Part B, No 2
• “Conclusions of the Working Group meeting on enforcement of judgments” (Prel. Doc. No 19 of November 1992 in Proceedings of the Seventeenth Session (1993), Vol. I, 257)
• Conclusions of the Special Commission of June 1992 on general affairs and policy of the Conference (Prel. Doc. No 18 of August 1992 in Proceedings of the Seventeenth Session (1993), Vol. I, 245)
• “Some reflections of the Permanent Bureau on a general convention on enforcement of judgments” (Prel. Doc. No 17 of May 1992 in Proceedings of the Seventeenth Session (1993), Vol. I, 231)