May a defendant assert a forum non conveniens defense when a judgment creditor, pursuant to an international convention, seeks to enforce a judgment rendered by a treaty party’s court that had jurisdiction based on an exclusive choice-of-court agreement? The State Department is currently considering that issue in drafting legislation to implement the 2005 Hague Convention on Choice of Court Agreements. U.S. litigants have an important stake in this issue because the convention would enhance the utility of such agreements and facilitate recognition and enforcement of the resulting judgments. In addition, ambiguity on this issue could significantly influence how other treaty partners perceive the effectiveness of U.S. implementation of the convention. The secretary of state’s Advisory Committee on Private International Law will consider this important question, among others relating to implementation of the convention, when it meets in Washington on October 11. 77 Fed. Reg. 52784 (August 30, 2012) (notice of meeting).
Article 5(2) of the Hague Convention expressly requires a court in a convention state that has jurisdiction under the convention to enforce an exclusive choice-of-court agreement. Such a court may “not decline to exercise jurisdiction on the ground that the dispute should be decided in a court of another State.” Ronald Brand and Paul Herrup conclude that Article 5(2) “will eliminate declination of jurisdiction on the basis of” forum non conveniens (FNC) for exclusive choice-of-court agreements within the convention’s scope. The 2005 Hague Convention on Choice of Court Agreements: Documents and Commentary 83 (2008).
