The Jurisdiction Project at the HCCH: Latest Developments and Steps Forward

The legislative work of the Hague Conference on Private International Law (HCCH) currently revolves around eight projects. The Jurisdiction Project occupies a prominent position in this context.

With the conclusion of the Judgments Convention, in 2019, the focus of the normative work of the HCCH in the area of civil and commercial law turned to the question of jurisdiction, meaning, in principle, direct jurisdiction and parallel litigation.

In 2021, the Council on General Affairs and Policy of the HCCH (CGAP) mandated the establishment of a Working Group on matters related to jurisdiction in transnational civil or commercial litigation. The Working Group was then tasked to proceed, in an inclusive and holistic manner, with an initial focus on developing binding rules for parallel proceedings and related actions, acknowledging the primary role of both jurisdictional rules and the doctrine of forum non conveniens in developing such rules.

The Working Group on Jurisdiction has since met eight times.

A report has recently been prepared by the Permanent Bureau of the HCCH in view of the upcoming CGAP meeting, due to take place on 4-7 March 2025. The report presents the progress made by the Working Group and the Working Group’s own recommendations directed at CGAP.

As stated in the report, the Working Group has made “solid progress” since the last CGAP meeting. Such progress is illustrated in a report of the seventh and eight meetings of the Working Group drawn up by Chair of the Group, Keisuke Takeshita, attached to the report of the Permanent Bureau.

A revised version of the draft text of a possible future instrument in this field is annexed, in turn, to the Chair’s report. The draft text, as it currently stands, consists of 23 articles, divided into five chapters. These deal, respectively, with: the scope of the possible future instrument (Chapter I); parallel proceedings (Chapter II); related actions (Chapter III); cooperation and communication among the authorities of Contracting States, as relevant both to parallel proceedings and related actions (Chapter IV); and general concerns, such as the concern for avoiding denial of justice, or ensuring the uniform interpretation of the future instrument (Chapter V).

In relation to parallel proceedings, the Working Group discussed in its most recent meetings the core framework for determining the more appropriate court when parallel proceedings are pending in the courts of two or more Contracting States. However, further work, the report notes, is necessary to finalise the ongoing discussion. The Working Group was also concerned with the definition and treatment of related actions.

Different views have been expressed within the Working Group concerning Article 8. Article 8(1) provides that, where parallel proceedings are pending before the courts of Contracting States, a court of a Contracting State shall suspend or dismiss the proceedings if, among other conditions, “it does not have jurisdiction / connection … and one or more of the other courts has or have such jurisdiction / connection”. Whether a court has jurisdiction over the matter (or has a connection with it) for the purposes of Article 8(1) depends on the requirements set out in Article 8(2), such as, among others, that the defendant was habitually resident in that State at the time that person became party to the proceedings.

As noted by the Chair in his report, the Working Group discussed in its eighth meeting a proposal seeking to delete Article 8 of the draft text, with some expressing serious concerns about the purpose, scope, implications and application of Article 8. Additionally, it was noted that Article 8(2) provisions of the draft text operate differently from the jurisdictional filters contained in Article 5 of the Judgments Convention. However, other members of the Working Group did not support this proposal noting that Article 8 is a core mechanism necessary to realize the appropriate operation of a future Convention and its deletion would affect the balance between the jurisdictional rules and the doctrine of forum non conveniens in the draft text. The point was also made that Article 8 offered predictability and was a compromise for accepting Article 9, the purpose of which is to identify the more appropriate court “where parallel proceedings are pending in the courts of two or more Contracting States that have jurisdiction / connection under Article 8”.

Against this background, the Working Group has recommended, to begin with, that CGAP invite the PB to convene one additional meeting of the WG. This would have a targeted agenda specifically focused on Article 8(2) of the draft text of the possible future instrument, without reopening or introducing discussion on policy issues.

The Workig Group has further recommended that the draft text resulting from the proposed additional meeting be the subject of an open and inclusive written consultation process, aimed to gather feedback from future operators of the envisaged Convention, particularly practitioners and judges. The Permanent Bureau, the Chair’s report also suggests, should compile the responses received into a document to be submitted to all HCCH Members in advance of the 2026 meeting of CGAP.

According to the Working Group, CGAP should then be able to decide at its 2026 meeting whether the Secretary General of the Conference should convene a Special Commission meeting before the end of June 2026 or at a later time.

The Working Group finally observed that, in light of the diverging views on the development of direct jurisdiction rules, following the completion of the work on the future instrument, the consideration of direct jurisdiction rules could be further developed in a “separate and subsequent project”.