I made a presentation on “Hague Choice of Court Agreement Convention and a Recent Japanese Court Case” at the HCCH Asia Pacific Week in Seoul on 6 July 2017. “HCCH” means The Hague Conference (La Conférence de La Haye) on Private International Law. As I used to be a member of the Japanese delegation to the conference to adopt the Convention and at the same time played a role of an official reporter of the Convention, I was invited to the meeting to discuss the practical application of the Convention which was put into force in 2015. Japan has not yet ratified it, but it seems necessary for Japan to be a Contracting Party in pursuit of global legal stability. Discussion on its application would be of value for Japan in its future consideration of ratification.

The topic of my presentation was one of the exceptions to the obligation of chosen court, which was provided for in Article 6, c). It provides that “A court of a Contracting State other than that of the chosen court shall suspend or dismiss proceedings to which an exclusive choice of court agreement applies unless – … c) giving effect to the agreement would lead to a manifest injustice or would be manifestly contrary to the public policy of the State of the court seised;…” Among others, I discussed that a choice of court agreement in order to evade an application of overriding mandatory rules of the forum state should not be valid. One of the typical overriding mandatory rules is a rule to regulate abuse of economic power by a stronger party in a business dealing. Such rules in country A is not necessarily same with those in country B, a stronger company in country A might try to exclude dispute settlement in country B in order to evade an overriding mandatory rule protecting weaker party in country B. In accordance with the above Convention, a court of country B may sustain jurisdiction on the ground that such choice of court agreement is against its public policy and therefore it is invalid. Since overriding mandatory rules are of fatal significance for every country, the exception seems to be a necessary evil in the real world. Such application would be indispensable for the Convention to become a real international legal infrastructure.