Het Haags Forumkeuzeverdrag en asymmetrische forumkeuzebedingen na Commerzbank v. Liquimar: een korte studie naar goede argumenten

Prior to the 2017 Commerzbank v. Liquimar case, it was generally accepted that asymmetric choice of forum agreements did not fall within the scope of the Hague Choice of Court Convention. The High Court, however, observed obiter dictum that in its view there are ‘good arguments’ that the definition of exclusive within Article 3(a) of the Hague Choice of Court Convention covers asymmetric agreements. This paper examines whether and to what extent such arguments exist by analysing the travaux préparatoires of the Hague Choice of Court Convention. From this analysis, it follows that asymmetric choice of court agreements were deliberately excluded from the scope of the Hague Choice of Court Convention due to the risk of parallel proceedings – which are not regulated in the Convention. Interpretations that qualify asymmetric clauses as exclusive do not obviate this issue. Courts could perhaps circumvent the travaux préparatoires under the rules of interpretation of the Vienna Convention on the Law of Treaties, but the risk of parallel proceedings remains. A possible solution lies with the contracting parties who could draft their own lis pendens rules. Even then, it remains doubtful whether asymmetric choice of court clauses fall within Article 3(a) of the Hague Choice of Court Convention because the drafters of the Convention provided an alternative: rather than falling within the jurisdictional rules, judgments based on asymmetric agreements may be recognized and enforced under Article 22 of the Hague Choice of Court Convention.