HCCH aBridged 2021 - Key findings from the HCCH Questionnaire - Ning Zhao

Hello, dear speakers, dear participants. A very good day to you, to everyone from The Hague. This presentation will demonstrate the results of the questionnaires conducted by the Permanent Bureau of the HCCH for the 2005 Trojans Court Convention. It only demonstrates some key findings of the questionnaire. This is a mandate received from SIGAD, the governing body of the HCCH. SIGAD tasked the Permanent Bureau to focus this edition on the 2005 Trojans Court Convention, including a questionnaire eliciting reasons why not more states are joining the convention. The Permanent Bureau prepared two sets of questionnaires, one for contracting parties and the other for non-contracting parties. In the questionnaires, we have prepared general questions for both contracting and non-contracting parties, as well as specific questions to each of the categories. Upon the circulation, the Permanent Bureau received in total 22 responses, six from non-contracting parties and 16 from contracting parties. Now about the responses to general questions. This slide shows the transparency of judicial administration as a whole. So as shown in the responses, 95% of the responses show that their courts make public the identity of active judges in international cases. And 82% of the responses states that it is possible for the parties to challenge the designation of a judge. Half of the responses show that their states have rules on mitigation of conflict of interest in cases involving foreign parties and their state. It is important to note that from the responses, no reported cases on judicial corruption in relation to international civil or commercial disputes since 2015. Now about international commercial courts. So one third of the responses indicated that they have established or intend to establish international commercial courts or tribunals. The jurisdiction of this court is generally based on parties' choice court agreements. So in order to attract parties to the court, all of them have specific features, particularly in relation to procedures. It can be summarized from the responses that there are certain common features such as foreign expert advice and evidence produced in foreign languages can be admitted by courts. These courts have also other features such as a few respondents indicated that their courts or tribunals allow the appointment of international judges, representation by foreign lawyers, and or are equipped with advisory council with foreign experts. And court judgments in foreign languages is also one of the features. However, it is still uncommon that proceedings of this court to be conducted in foreign languages is still uncommon. Now I move on to specific questions to contracting parties. So the general assessment, some states, some responses states that it is still too early to have a thorough assessment. And also showing from the responses in the past five years, there have not been many civil or commercial cases involving foreign parties to which a state is also a party. Also from the responses, the convention has often been included in the training program or bar exam for judges, practitioners, or other professionals. Now I move on to specific questions to non-contracting parties. So from the responses, it shows as a whole, all responses state that their courts give effect to exclusive choice court agreement. So more specifically from the responses, there are no cases where a court established jurisdiction despite an exclusive choice court agreement designating court of another state. From the responses, there are also no cases where a court refused to recognize or enforce a judgment, a foreign judgment, in which the court jurisdiction was based on exclusive choice court agreement as to the rules on recognition and enforcement. The grounds for refusal provided in the convention are in line with national law. Regarding the considerations for joining the convention, the response is to show that there are states in the legislative process in joining the convention. So some states consider reasons that co-affect the process of joining the convention, such as subject matters, and in the area of jurisdiction, some states indicated that their domestic law requires a sufficient connection between the parties or the dispute and their states when parties selecting a choice court agreement. In the area of recognition or enforcement, some states' court will not recognize or enforce a judgment given by a chosen court where all elements of the dispute are connected with that state, and there's no connection with the chosen court other than the parties' choice court agreement. So that is the internationality element. So several states are also concerned about enforcing a judgment for punitive damages. There are several other considerations. For example, even if the choice court agreement is concluded between two private parties, some states will be concerned about declining jurisdiction in cases where it considers the court chosen to be unsuitable, or will refuse to recognize or enforce a judgment given by a chosen court that it considers to be unsuitable. It should be noticed here, unsuitable, in the responses, it states that those unsuitable refers to the situation where a choice court agreement violates the exclusive jurisdiction of the court in the state addressed. Now regarding to suggested future work. In the responses, their suggestions says continue raising awareness, which means to organize seminars or conferences on the benefits of the Convention. So there are also suggestions on the development of model clause, country profiles, or case law database. There are also suggestions for conducting research or studies in particular with certain subject matters. There are also suggestions saying that a joint promotion with the 2019 Judgments Convention should be carried out together. So this is the end of my presentation. Thank you for listening. Now I give the floor to my colleague, Dr. Joao Ribeiro Bidao, who oversees the transnational litigation team at the Permanent Bureau, including the practical operation of the 2005 Church Court Convention. He will moderate the first panel. Joao, the floor is yours. Thank you.