18 February 2000
Source: http://www.access.gpo.gov/su_docs/aces/fr-cont.html

[Federal Register: February 18, 2000 (Volume 65, Number 34)]
[Notices]               
[Page 8468]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18fe00-140]                         

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF STATE

[Public Notice No. 3220]

 
Secretary of State's Advisory Committee on Private International 
Law: Study Group on Jurisdiction and Judgments; Meeting Notice

    There will be a public meeting of a study group of the Secretary of 
State's Advisory Committee on Private International Law on Friday, 
March 10, 2000, to discuss intellectual property issues related to the 
draft Hague convention on jurisdiction and the recognition and 
enforcement of foreign civil judgments. The meeting will be held from 
9:30 am to 3: pm in room 1107 of the Department of State building, 2201 
C St., NW, Washington DC 20520.
    The purpose of the Study Group meeting is to assist the Department 
of State consider the position of the United States in negotiations at 
the Hague Conference on Private International Law for the development 
of a convention that would regulate jurisdiction in international cases 
and provide for the recognition and enforcement of certain resulting 
judgments. The meeting will consider the preliminary draft text of the 
convention, completed at the last round of intergovernmental 
negotiations in October 1999. The Department expects the Hague 
Conference to convene an international experts meeting to consider 
intellectual property aspects of the text possibly by mid-summer 2000.
    Persons interested in the work of the study group or in attending 
the March 10 meeting in Washington may find a copy of the preliminary 
draft convention on the Department of State website: www.state.gov>. 
The text may be found by clicking on ``index,'' ``legal,'' ``private 
international law,'' then ``what's new.''[below] Copies may also be requested 
from Ms. Rosie Gonzales by fax at 202-776-8482, by telephone at 202-
776-8420 (you may leave your request, name, telephone number and 
mailing address on the answering machine), or by email at 
pildb@his.com>.
    The study group meeting is open to the public up to the capacity of 
the meeting room. As entry to the Department of State is controlled for 
security reasons, persons who wish to attend the meeting must notify 
Ms. Gonzales no later than Wednesday March 8 with their name, date of 
birth, and social security number. They should also provide their 
company or organization affiliation, mailing and email addresses, and 
fax and telephone numbers. Persons registered to attend must arrive by 
9:30 am at the main entrance to the Department of State at 2201 C St., 
NW, unless they have made separate arrangements with Ms. Gonzales.
    Any person who is unable to attend, but wishes to have his or her 
views considered, may send comments to Ms. Gonzales at the above fax 
number or email address, or may address them to the Assistant Legal 
Adviser for Private International Law (L/PIL), Suite 203, South 
Building, 2430 E Street, NW Washington, DC, 20037-2851.

    Dated: February 14, 2000.
Jeffrey D. Kovar,
Assistant Legal Adviser for Private International Law.
[FR Doc. 00-3984 Filed 2-17-00; 8:45 am]
BILLING CODE 4710-08-P

Source: http://www.state.gov/www/global/legal_affairs/whats_new.html

International Judicial Assistance

Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters

A Special Commission of the Hague Conference on Private International Law, consisting of approximately forty member states and observers and more than a dozen intergovernmental and private organizations met in the Hague October 25 -30, 1999. The meeting produced a preliminary draft convention on jurisdiction and the recognition and enforcement of foreign civil and commercial judgments. The convention would provide for the recognition and enforcement of domestic judgments by the courts of other party states as well as rules of jurisdiction governing international cases covered by the convention. Jurisdictional rules would include bases of jurisdiction that are required to be provided by national courts, areas for which jurisdiction is designated exclusively for the courts of one state, bases of jurisdiction that may not be exercised, and bases of jurisdiction that fall outside the convention. Only judgments entered in cases where jurisdiction was founded consistent with the bases of jurisdiction required by the convention would be eligible for recognition and enforcement under the terms of the convention.

No decisions have yet been taken on a final schedule of work on the project. The negotiations began in 1996 on the basis of a proposal by the United States, and were originally scheduled to be completed in October 2000. This schedule is unlikely to be met, however, because of the large number of difficult and complex issues on which there are significant differences of opinion among governments. However, while governments continue to consult on the scheduling of future formal meetings, the Special Commission has asked the Hague Conference Permanent Bureau to organize informal meetings of international experts early in 2000 to examine the text from the perspective of intellectual property issues and electronic commerce issues.

We contemplate convening one or more public meetings under the auspices of the Secretary of State's Advisory Committee on Private International Law to consider the intellectual property and electronic commerce issues in more detail prior to any international experts meeting, and to provide advice for the U.S. delegation. A more general meeting on the draft convention will also be held prior to any future formal negotiating session. These meetings will be announced in the Federal Register. Persons wishing to receive notice of such meetings directly should notify Ms. Rosie Gonzales at fax: 202-776-8482 or e-mail: pildb@his.com. Comments on the current draft are also welcome at any time.

[end of document]

Source: http://www.state.gov/www/global/legal_affairs/991030_forjudg.html

HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW

CHAPTER I -- SCOPE OF THE CONVENTION

Article 1 Substantive scope

1. The Convention applies to civil and commercial matters. It shall not extend in particular to revenue, customs or administrative matters.

2. The Convention does not apply to --

(a) the status and legal capacity of natural persons;
b) maintenance obligations;
c) matrimonial property regimes and other rights and obligations arising out of marriage or similar relationships;
d) wills and succession;
e) insolvency, composition or analogous proceedings;
f) social security;
g) arbitration and proceedings related thereto;
h) admiralty or maritime matters.

3. A dispute is not excluded from the scope of the Convention by the mere fact that a government, a governmental agency or any other person acting for the State is a party thereto.

4. Nothing in this Convention affects the privileges and immunities of sovereign States or of entities of sovereign States, or of international organisations.

Article 2 Territorial scope

1. The provisions of Chapter II shall apply in the courts of a Contracting State unless all the parties are habitually resident in that State. However, even if all the parties are habitually resident in that State --

a) Article 4 shall apply if they have agreed that a court or courts of another Contracting State have jurisdiction to determine the dispute;
b) Article 12, regarding exclusive jurisdiction, shall apply;
c) Articles 21 and 22 shall apply where the court is required to determine whether to decline jurisdiction or suspend its proceedings on the grounds that the dispute ought to be determined in the courts of another Contracting State.

2. The provisions of Chapter III apply to the recognition and enforcement in a Contracting State of a judgment rendered in another Contracting State.

CHAPTER II -- JURISDICTION

Article 3 Defendant's forum

1. Subject to the provisions of the Convention, a defendant may be sued in the courts of the State where that defendant is habitually resident.

2. For the purposes of the Convention, an entity or person other than a natural person shall be considered to be habitually resident in the State --

a) where it has its statutory seat,
b) under whose law it was incorporated or formed,
c) where it has its central administration, or
d) where it has its principal place of business.

Article 4 Choice of court

1. If the parties have agreed that a court or courts of a Contracting State shall have jurisdiction to settle any dispute which has arisen or may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, and that jurisdiction shall be exclusive unless the parties have agreed otherwise. Where an agreement having exclusive effect designates a court or courts of a non-Contracting State, courts in Contracting States shall decline jurisdiction or suspend proceedings unless the court or courts chosen have themselves declined jurisdiction.

2. An agreement within the meaning of paragraph 1 shall be valid as to form, if it was entered into or confirmed --

a) in writing;
b) by any other means of communication which renders information accessible so as to be usable for subsequent reference;
c) in accordance with a usage which is regularly observed by the parties;
d) in accordance with a usage of which the parties were or ought to have been aware and which is regularly observed by parties to contracts of the same nature in the particular trade or commerce concerned.

3. Agreements conferring jurisdiction and similar clauses in trust instruments shall be without effect if they conflict with the provisions of Article 7, 8 or 12.

Article 5 Appearance by the defendant

1. Subject to Article 12, a court has jurisdiction if the defendant proceeds on the merits without contesting jurisdiction.

2. The defendant has the right to contest jurisdiction no later than at the time of the first defence on the merits.

Article 6 Contracts

A plaintiff may bring an action in contract in the courts of a State in which --

a) in matters relating to the supply of goods, the goods were supplied in whole or in part;
b) in matters relating to the provision of services, the services were provided in whole or in part;
c) in matters relating both to the supply of goods and the provision of services, performance of the principal obligation took place in whole or in part.

Article 7 Contracts concluded by consumers

1. A plaintiff who concluded a contract for a purpose which is outside its trade or profession, hereafter designated as the consumer, may bring a claim in the courts of the State in which it is habitually resident, if

a) the conclusion of the contract on which the claim is based is related to trade or professional activities that the defendant has engaged in or directed to that State, in particular in soliciting business through means of publicity, and
b) the consumer has taken the steps necessary for the conclusion of the contract in that State.

2. A claim against the consumer may only be brought by a person who entered into the contract in the course of its trade or profession before the courts of the State of the habitual residence of the consumer.

3. The parties to a contract within the meaning of paragraph 1 may, by an agreement which conforms with the requirements of Article 4, make a choice of court --

a) if such agreement is entered into after the dispute has arisen, or
b) to the extent only that it allows the consumer to bring proceedings in another court.

Article 8 Individual contracts of employment

1. In matters relating to individual contracts of employment --

a) an employee may bring an action against the employer,

          i) in the courts of the State in which the employee habitually carries out his work or in the courts of the last State in which he did so, or
          ii) if the employee does not or did not habitually carry out his work in any one State, in the courts of the State in which the business that engaged the employee is or was situated;

b) a claim against an employee may be brought by the employer only,

          i) in the courts of the State where the employee is habitually resident, or
          ii) in the courts of the State in which the employee habitually carries out his work.

2. The parties to a contract within the meaning of paragraph 1 may, by an agreement which conforms with the requirements of Article 4, make a choice of court --

a) if such agreement is entered into after the dispute has arisen, or
b) to the extent only that it allows the employee to bring proceedings in courts other than those indicated in this Article or in Article 3 of the Convention.

Article 9 Branches [and regular commercial activity]

A plaintiff may bring an action in the courts of a State in which a branch, agency or any other establishment of the defendant is situated, [or where the defendant has carried on regular commercial activity by other means,] provided that the dispute relates directly to the activity of that branch, agency or establishment [or to that regular commercial activity].

Article 10 Torts or delicts

1. A plaintiff may bring an action in tort or delict in the courts of the State --

a) in which the act or omission that caused injury occurred, or
b) in which the injury arose, unless the defendant establishes that the person claimed to be responsible could not reasonably have foreseen that the act or omission could result in an injury of the same nature in that State.

2. Paragraph 1 b) shall not apply to injury caused by anti-trust violations, in particular price-fixing or monopolisation, or conspiracy to inflict economic loss.

3. A plaintiff may also bring an action in accordance with paragraph 1 when the act or omission, or the injury may occur.

4. If an action is brought in the courts of a State only on the basis that the injury arose or may occur there, those courts shall have jurisdiction only in respect of the injury that occurred or may occur in that State, unless the injured person has his or her habitual residence in that State.

Article 11 Trusts

1. In proceedings concerning the validity, construction, effects, administration or variation of a trust created voluntarily and evidenced in writing, the courts of a Contracting State designated in the trust instrument for this purpose shall have exclusive jurisdiction. Where the trust instrument designates a court or courts of a non-Contracting State, courts in Contracting States shall decline jurisdiction or suspend proceedings unless the court or courts chosen have themselves declined jurisdiction.

2. In the absence of such designation, proceedings may be brought before the courts of a State --

a) in which is situated the principal place of administration of the trust;
b) whose law is applicable to the trust;
c) with which the trust has the closest connection for the purpose of the proceedings.

Article 12 Exclusive jurisdiction

1. In proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Contracting State in which the property is situated have exclusive jurisdiction, unless in proceedings which have as their object tenancies of immovable property, the tenant is habitually resident in a different State.

2. In proceedings which have as their object the validity, nullity, or dissolution of a legal person, or the validity or nullity of the decisions of its organs, the courts of a Contracting State whose law governs the legal person have exclusive jurisdiction.

3. In proceedings which have as their object the validity or nullity of entries in public registers, the courts of the Contracting State in which the register is kept have exclusive jurisdiction.

4. In proceedings which have as their object the registration, validity, [or] nullity[, or revocation or infringement,] of patents, trade marks, designs or other similar rights required to be deposited or registered, the courts of the Contracting State in which the deposit or registration has been applied for, has taken place or, under the terms of an international convention, is deemed to have taken place, have exclusive jurisdiction. This shall not apply to copyright or any neighbouring rights, even though registration or deposit of such rights is possible.

[5. In relation to proceedings which have as their object the infringement of patents, the preceding paragraph does not exclude the jurisdiction of any other court under the Convention or under the national law of a Contracting State.]

[6. The previous paragraphs shall not apply when the matters referred to therein arise as incidental questions.]

Article 13 Provisional and protective measures

1. A court having jurisdiction under Articles 3 to 12 to determine the merits of the case has jurisdiction to order any provisional or protective measures.

2. The courts of a State in which property is located have jurisdiction to order any provisional or protective measures in respect of that property.

3. A court of a Contracting State not having jurisdiction under paragraphs 1 or 2 may order provisional or protective measures, provided that --

a) their enforcement is limited to the territory of that State, and
b) their purpose is to protect on an interim basis a claim on the merits which is pending or to be brought by the requesting party.

Article 14 Multiple defendants

1. A plaintiff bringing an action against a defendant in a court of the State in which that defendant is habitually resident may also proceed in that court against other defendants not habitually resident in that State if --

a) the claims against the defendant habitually resident in that State and the other defendants are so closely connected that they should be adjudicated together to avoid a serious risk of inconsistent judgments, and
b) as to each defendant not habitually resident in that State, there is a substantial connection between that State and the dispute involving that defendant.

2. Paragraph 1 shall not apply to a codefendant invoking an exclusive choice of court clause agreed with the plaintiff and conforming with Article 4.

Article 15 Counter-claims

A court which has jurisdiction to determine a claim under the provisions of the Convention shall also have jurisdiction to determine a counter-claim arising out of the transaction or occurrence on which the original claim is based.

Article 16 Third party claims

1. A court which has jurisdiction to determine a claim under the provisions of the Convention shall also have jurisdiction to determine a claim by a defendant against a third party for indemnity or contribution in respect of the claim against that defendant to the extent that such an action is permitted by national law, provided that there is a substantial connection between that State and the dispute involving that third party.

2. Paragraph 1 shall not apply to a third party invoking an exclusive choice of court clause agreed with the defendant and conforming with Article 4.

Article 17 Jurisdiction based on national law

Subject to Articles 4, 5, 7, 8, 12 and 13, the Convention does not prevent the application by Contracting States of rules of jurisdiction under national law, provided that this is not prohibited under Article 18.

Article 18 Prohibited grounds of jurisdiction

1. Where the defendant is habitually resident in a Contracting State, the application of a rule of jurisdiction provided for under the national law of a Contracting State is prohibited if there is no substantial connection between that State and the dispute.

2. In particular, jurisdiction shall not be exercised by the courts of a Contracting State on the basis solely of one or more of the following --

a) the presence or the seizure in that State of property belonging to the defendant, except where the dispute is directly related to that property;
b) the nationality of the plaintiff;
c) the nationality of the defendant;
d) the domicile, habitual or temporary residence, or presence of the plaintiff in that State;
e) the carrying on of commercial or other activities by the defendant in that State, except where the dispute is directly related to those activities;
f) the service of a writ upon the defendant in that State;
g) the unilateral designation of the forum by the plaintiff;
h) proceedings in that State for declaration of enforceability or registration or for the enforcement of a judgment, except where the dispute is directly related to such proceedings;
i) the temporary residence or presence of the defendant in that State;
j) the signing in that State of the contract from which the dispute arises.

3. Nothing in this Article shall prevent a court in a Contracting State from exercising jurisdiction under national law in an action [seeking relief] [claiming damages] in respect of conduct which constitutes --

[Variant One:

[a) genocide, a crime against humanity or a war crime[, as defined in the Statute of the International Criminal Court]; or]
[b) a serious crime against a natural person under international law; or]
[c) a grave violation against a natural person of non-derogable fundamental rights established under international law, such as torture, slavery, forced labour and disappeared persons].

[Sub-paragraphs [b) and] c) above apply only if the party seeking relief is exposed to a risk of a denial of justice because proceedings in another State are not possible or cannot reasonably be required.]

Variant Two:

a serious crime under international law, provided that this State has established its criminal jurisdiction over that crime in accordance with an international treaty to which it is a party and that the claim is for civil compensatory damages for death or serious bodily injury arising from that crime.]

Article 19 Authority of the court seised

Where the defendant does not enter an appearance, the court shall verify whether Article 18 prohibits it from exercising jurisdiction if --

a) national law so requires; or
b) the plaintiff so requests; or
[c) the defendant so requests, even after judgment is entered in accordance with procedures established under national law; or]
[d) the document which instituted the proceedings or an equivalent document was served on the defendant in another Contracting State.]
or
[d) it appears from the documents filed by the plaintiff that the defendant's address is in another Contracting State.]

Article 20

1. The court shall stay the proceedings so long as it is not established that the document which instituted the proceedings or an equivalent document, including the essential elements of the claim, was notified to the defendant in sufficient time and in such a way as to enable him to arrange for his defence, or that all necessary steps have been taken to that effect.

[2. Paragraph 1 shall not affect the use of international instruments concerning the service abroad of judicial and extrajudicial documents in civil or commercial matters, in accordance with the law of the forum.]

[3. Paragraph 1 shall not apply, in case of urgency, to any provisional or protective measures.]

Article 21 Lis pendens

1. When the same parties are engaged in proceedings in courts of different Contracting States and when such proceedings are based on the same causes of action, irrespective of the relief sought, the court second seised shall suspend the proceedings if the court first seised has jurisdiction and is expected to render a judgment capable of being recognised under the Convention in the State of the court second seised, unless the latter has exclusive jurisdiction under Article 4 or 12.

2. The court second seised shall decline jurisdiction as soon as it is presented with a judgment rendered by the court first seised that complies with the requirements for recognition or enforcement under the Convention.

3. Upon application of a party, the court second seised may proceed with the case if the plaintiff in the court first seised has failed to take the necessary steps to bring the proceedings to a decision on the merits or if that court has not rendered such a decision within a reasonable time.

4. The provisions of the preceding paragraphs apply to the court second seised even in a case where the jurisdiction of that court is based on the national law of that State in accordance with Article 17.

5. For the purpose of this Article, a court shall be deemed to be seised --

a) when the document instituting the proceedings or an equivalent document is lodged with the court, or
b) if such document has to be served before being lodged with the court, when it is received by the authority responsible for service or served on the defendant.

[As appropriate, universal time is applicable.]

6. If in the action before the court first seised the plaintiff seeks a determination that it has no obligation to the defendant, and if an action seeking substantive relief is brought in the court second seised --

a) the provisions of paragraphs 1 to 5 above shall not apply to the court second seised, and
b) the court first seised shall suspend the proceedings at the request of a party if the court second seised is expected to render a decision capable of being recognised under the Convention.

7. This Article shall not apply if the court first seised, on application by a party, determines that the court second seised is clearly more appropriate to resolve the dispute, under the conditions specified in Article 22.

Article 22 Exceptional circumstances for declining jurisdiction

1. In exceptional circumstances, when the jurisdiction of the court seised is not founded on an exclusive choice of court agreement valid under Article 4, or on Article 7, 8 or 12, the court may, on application by a party, suspend its proceedings if in that case it is clearly inappropriate for that court to exercise jurisdiction and if a court of another State has jurisdiction and is clearly more appropriate to resolve the dispute. Such application must be made no later than at the time of the first defence on the merits.

2. The court shall take into account, in particular --

a) any inconvenience to the parties in view of their habitual residence;
b) the nature and location of the evidence, including documents and witnesses, and the procedures for obtaining such evidence;
c) applicable limitation or prescription periods;
d) the possibility of obtaining recognition and enforcement of any decision on the merits.

3. In deciding whether to suspend the proceedings, a court shall not discriminate on the basis of the nationality or habitual residence of the parties.

4. If the court decides to suspend its proceedings under paragraph 1, it may order the defendant to provide security sufficient to satisfy any decision of the other court on the merits. However, it shall make such an order if the other court has jurisdiction only under Article 17, unless the defendant establishes that sufficient assets exist in the State of that other court or in another State where the court's decision could be enforced.

3. When the court has suspended its proceedings under paragraph 1,

a) it shall decline to exercise jurisdiction if the court of the other State exercises jurisdiction, or if the plaintiff does not bring the proceedings in that State within the time specified by the court, or
b) it shall proceed with the case if the court of the other State decides not to exercise jurisdiction.

CHAPTER III - RECOGNITION AND ENFORCEMENT

Article 23 Definition of "judgment"

For the purposes of this Chapter, "judgment" means --

a) any decision given by a court, whatever it may be called, including a decree or order, as well as the determination of costs or expenses by an officer of the court, provided that it relates to a decision which may be recognised or enforced under the Convention;
b) decisions ordering provisional or protective measures in accordance with Article 13, paragraph 1.

Article 24 Judgments excluded from Chapter III

This Chapter shall not apply to judgments based on a ground of jurisdiction provided for by national law in accordance with Article 17.

Article 25 Judgments to be recognised or enforced

1. A judgment based on a ground of jurisdiction provided for in Articles 3 to 13, or which is consistent with any such ground, shall be recognised or enforced under this Chapter.

2. In order to be recognised, a judgment referred to in paragraph 1 must have the effect of res judicata in the State of origin.

3. In order to be enforceable, a judgment referred to in paragraph 1 must be enforceable in the State of origin.

4. However, recognition or enforcement may be postponed if the judgment is the subject of review in the State of origin or if the time limit for seeking a review has not expired.

Article 26 Judgments not to be recognised or enforced

A judgment based on a ground of jurisdiction which conflicts with Articles 4, 5, 7, 8 or 12, or whose application is prohibited by virtue of Article 18, shall not be recognised or enforced.

Article 27 Verification of jurisdiction

1. The court addressed shall verify the jurisdiction of the court of origin.

2. In verifying the jurisdiction of the court of origin, the court addressed shall be bound by the findings of fact on which the court of origin based its jurisdiction, unless the judgment was given by default.

3. Recognition or enforcement of a judgment may not be refused on the ground that the court addressed considers that the court of origin should have declined jurisdiction in accordance with Article 22.

Article 28 Grounds for refusal of recognition or enforcement

1. Recognition or enforcement of a judgment may be refused if --

a) proceedings between the same parties and having the same subject matter are pending before a court of the State addressed, if first seised in accordance with Article 21;
b) the judgment is inconsistent with a judgment rendered, either in the State addressed or in another State, provided that in the latter case the judgment is capable of being recognised or enforced in the State addressed;
c) the judgment results from proceedings incompatible with fundamental principles of procedure of the State addressed, including the right of each party to be heard by an impartial and independent court;
d) the document which instituted the proceedings or an equivalent document, including the essential elements of the claim, was not notified to the defendant in sufficient time and in such a way as to enable him to arrange for his defence;
e) the judgment was obtained by fraud in connection with a matter of procedure;
f) recognition or enforcement would be manifestly incompatible with the public policy of the State addressed.

2. Without prejudice to such review as is necessary for the purpose of application of the provisions of this Chapter, there shall be no review of the merits of the judgment rendered by the court of origin.

Article 29 Documents to be produced

1. The party seeking recognition or applying for enforcement shall produce --

a) a complete and certified copy of the judgment;
b) if the judgment was rendered by default, the original or a certified copy of a document establishing that the document which instituted the proceedings or an equivalent document was notified to the defaulting party;
c) all documents required to establish that the judgment is res judicata in the State of origin or, as the case may be, is enforceable in that State;
d) if the court addressed so requires, a translation of the documents referred to above, made by a person qualified to do so.

2. No legalisation or similar formality may be required.

3. If the terms of the judgment do not permit the court addressed to verify whether the conditions of this Chapter have been complied with, that court may require the production of any other necessary documents.

Article 30 Procedure

The procedure for recognition, declaration of enforceability or registration for enforcement, and the enforcement of the judgment, are governed by the law of the State addressed so far as the Convention does not provide otherwise. The court addressed shall act expeditiously.

Article 31 Costs of proceedings

No security, bond or deposit, however described, to guarantee the payment of costs or expenses shall be required by reason only that the applicant is a national of, or has its habitual residence in, another Contracting State.

Article 32 Legal aid

Natural persons habitually resident in a Contracting State shall be entitled, in proceedings for recognition or enforcement, to legal aid under the same conditions as apply to persons habitually resident in the requested State.

Article 33 Damages

1. In so far as a judgment awards non-compensatory, including exemplary or punitive, damages, it shall be recognised at least to the extent that similar or comparable damages could have been awarded in the State addressed.

2.

a) Where the debtor, after proceedings in which the creditor has the opportunity to be heard, satisfies the court addressed that in the circumstances, including those existing in the State of origin, grossly excessive damages have been awarded, recognition may be limited to a lesser amount.
b) In no event shall the court addressed recognise the judgment in an amount less than that which could have been awarded in the State addressed in the same circumstances, including those existing in the State of origin.

3. In applying paragraph 1 or 2, the court addressed shall take into account whether and to what extent the damages awarded by the court of origin serve to cover costs and expenses relating to the proceedings.

Article 34 Severability

If the judgment contains elements which are severable, one or more of them may be separately recognised, declared enforceable, registered for enforcement, or enforced.

Article 35 Authentic instruments

1. Each Contracting State may declare that it will enforce, subject to reciprocity, authentic instruments formally drawn up or registered and enforceable in another Contracting State.

2. The authentic instrument must have been authenticated by a public authority or a delegate of a public authority and the authentication must relate to both the signature and the content of the document.

[3. The provisions concerning recognition and enforcement provided for in this Chapter shall apply as appropriate.]

Article 36 Settlements

Settlements to which a court has given its authority shall be recognised, declared enforceable or registered for enforcement in the State addressed under the same conditions as judgments falling within the Convention, so far as those conditions apply to settlements.

CHAPTER IV -- GENERAL PROVISIONS

Article 37 Relationship with other conventions

[See annex]

Article 38 Uniform interpretation

1. In the interpretation of the Convention, regard is to be had to its international character and to the need to promote uniformity in its application.

2. The courts of each Contracting State shall, when applying and interpreting the Convention, take due account of the case law of other Contracting States.

[Article 39

1. Each Contracting State shall, at the request of the Secretary General of the Hague Conference on Private International Law, send to the Permanent Bureau at regular intervals copies of any significant decisions taken in applying the Convention and, as appropriate, other relevant information.

2. The Secretary General of the Hague Conference on Private International Law shall at regular intervals convene a Special Commission to review the operation of the Convention.

3. The Commission may make recommendations on the application or interpretation of the Convention and may propose modifications or revisions of the Convention or the addition of protocols.]

[Article 40

1. Upon a joint request of the parties to a dispute in which the interpretation of the Convention is at issue, or of a court of a Contracting State, the Permanent Bureau of the Hague Conference on Private International Law shall assist in the establishment of a committee of experts to make recommendations to such parties or such court.

[2. The Secretary General of the Hague Conference on Private International Law shall, as soon as possible, convene a Special Commission to draw up an optional protocol setting out rules governing the composition and procedures of the committee of experts.]]

Article 41 Federal clause

Article 37 Relationship with other conventions

Proposal 1

1. The Convention does not affect any international instrument to which Contracting States are or become Parties and which contains provisions on matters governed by the Convention, unless a contrary declaration is made by the States Parties to such instrument.

2. However, the Convention prevails over such instruments to the extent that they provide for fora not authorized under the provisions of Article 18 of the Convention.

3. The preceding paragraphs also apply to uniform laws based on special ties of a regional or other nature between the States concerned and to instruments adopted by a community of States.

Proposal 2

1.

a) In this Article, the Brussels Convention [as amended], Regulation [·] of the European Union, and the Lugano Convention [as amended] shall be collectively referred to as "the European instruments".
b) A State party to either of the above Conventions or a Member State of the European Union to which the above Regulation applies shall be collectively referred to as "European instrument States".

2. Subject to the following provisions [of this Article], a European instrument State shall apply the European instruments, and not the Convention, whenever the European instruments are applicable according to their terms.

3. Except where the provisions of the European instruments on --

a) exclusive jurisdiction;
b) prorogation of jurisdiction;
c) lis pendens and related actions;
d) protective jurisdiction for consumers or employees;

are applicable, a European instrument State shall apply Articles 3, 5 to 11, 14 to 16 and 18 of the Convention whenever the defendant is not domiciled in a European instrument State.

4. Even if the defendant is domiciled in a European instrument State, a court of such a State shall apply --

a) Article 4 of the Convention whenever the court chosen is not in a European instrument State;
b) Article 12 of the Convention whenever the court with exclusive jurisdiction under that provision is not in a European instrument State; and
c) Articles 21 and 22 of this Convention whenever the court in whose favour the proceedings are stayed or jurisdiction is declined is not a court of a European instrument State.

Note: Another provision will be needed for other conventions and instruments.

Proposal 3

5. Judgments of courts of a Contracting State to this Convention based on jurisdiction granted under the terms of a different international convention ("other Convention") shall be recognised and enforced in courts of Contracting States to this Convention which are also Contracting States to the other Convention. This provision shall not apply if, by reservation under Article ·, a Contracting State chooses --

a) not to be governed by this provision, or
b) not to be governed by this provision as to certain designated other conventions.

[end of document]