Cabris Investment: Has the CJEU Forgotten About the Hague Convention?

This post was contributed by Gilles Cuniberti, Brooke Marshall and Louise Ellen Teitz. They are the authors (with the late Peter Mankowski) of a commentary on the 2005 Hague Convention on Choice of Court Agreements forthcoming with Edward Elgar.

On 9 October 2025, the CJEU delivered its judgment in Case C-540/24, Cabris Investment already discussed yesterday on this blog and in several other interesting posts (see here and here).

The case was concerned with an exclusive choice of court agreement stipulated in a consultancy contract between two companies incorporated in the United Kingdom. The choice of court agreement provided for the exclusive jurisdiction of the commercial court of Vienna, Austria.

The CJEU was referred five questions aimed at determining the instrument applicable to the choice of court agreement. The Austrian referring court wondered whether the Brussels I bis Regulation, the 1968 Brussels Convention or a bilateral treaty between Austria and the UK applied.

It did not, however, ask whether the 2005 Hague Convention on Choice of Court Agreements applied, and the CJEU did not mention it.

So, did it apply?

International Case

Article 1 of the Hague Convention provides that it only applies “in international cases”, and that for the purposes of its rules on jurisdiction,

a case is international unless the parties are resident in the same Contracting State and the relationship of the parties and all other elements relevant to the dispute, regardless of the location of the chosen court, are connected only with that State.

In deciding that the Brussels I bis Regulation did apply in this case, the CJEU followed its previous judgment in Inkreal and ruled that the Brussels I bis only applies when there is an international element, but that this international element can be constituted by the mere choice of a foreign court (within the EU). Therefore, there was an international element in this case, irrespective of whether the parties were both domiciled in the UK, and their contract had no link with any other state than the UK.

The choice of a foreign court, however, is insufficient to make a case international for the purpose of the Hague Convention, as Article 1 expressly provides that this should be determined “regardless of the location of the chosen court”.

Yet, the judgment reveals that there was another link between the case and Austria: the parties had also provided that:

This contract and the relationship between the parties shall be governed by and construed in accordance with Austrian law.

The issue arises whether a choice of foreign law is enough to make a case international within the meaning of Article 1 of the Hague Convention.

One view is that Article 1 does not exclude this possibility, as it excludes  when there is only a choice of a foreign court. One could thus consider that including a choice of foreign law – one of the ‘elements relevant to the dispute’ – could trigger the application of the Convention.

Another view is that the exclusion of the choice of a foreign court as a relevant element must be interpreted as meaning that only objective elements can be relevant, and that the parties cannot not, merely by a contractual term, turn a domestic case into an international one. This would be consistent with Article 3 of the Rome I Regulation, which excludes taking into account the choice of foreign law to determine whether a contract is international, but the Rome I Regulation does not apply in all the the Contracting States of the Hague Convention and is not the basis for interpreting the Hague Convention. However, some scholars have suggested that national law should be used to interpret the meaning of the required connection, and one can fear that the CJEU would find the Rome I Regulation definition to be controlling in its interpretation of internationality under the Convention.

By neglecting to discuss the possible applicability of the Hague Convention in Cabris Investment, it could be that both the Austrian referring court and the CJEU assumed the second view to be correct.

Territorial scope of application

Application of the Hague Convention in the Courts of EU Member States

From the perspective of the EU, the Hague Convention is an instrument of EU law, since it was concluded by the EU itself on behalf of the EU Member States (Article 216(2) of the TFEU). The effect of Article 67 of the Brussels I bis Regulation, which regulates conflicts with EU instruments, is that the Brussels I bis gives way to the Hague Convention where the Hague Convention applies.

Article 26(6) of the Hague Convention governs its relationship with the Brussels I bis Regulation. According to it, the Hague Convention

shall not affect the application of the rules of a Regional Economic Integration Organisation that is a Party to this Convention, whether adopted before or after this Convention … a) where none of the parties is resident in a Contracting State that is not a Member State of the Regional Economic Integration Organisation.

In effect, it therefore provides that the Convention gives way to the Brussels I bis when all parties are resident in an EU Member State.

The question that the facts of Cabris Investment invites is when the residence of the parties is to be adjudged for the purposes of Article 26(6)(a). If their residence is be assessed at the time of the conclusion of the choice of court agreement, then the Hague Convention would appear to give way to the Brussels I bis on these facts, since the agreement was concluded during the transition period, during which time the UK was to be treated, both for the purposes of the Brussels I bis and the Hague Convention, as though it were an EU Member State. If, instead, the residence of the parties is to be assessed at the time proceedings were commenced, which was after the end of the transition period, then the Convention would apply and not give way to the Brussels I bis Regulation.

In our forthcoming commentary, it is suggested that the relevant point in time to assess the parties’ residences under Article 26(6)(a) should be determined by the same yardsticks as are prevailing elsewhere under the Convention. As mentioned above, it is also suggested that for the purposes of Article 1 that a case should be treated as international if it is international either at the time of conclusion of the choice of court agreement or at the time proceedings are commenced. Applied to Article 26(6)(a), that would suggest that the Hague Convention should apply if both parties were resident in a Contracting State that is not an EU Member State either at the time the agreement was concluded or at the time the proceedings were commenced. If that view is right, the facts of Cabris Investment properly fell within the territorial scope of the Hague Convention, not the Brussels I bis Regulation.

Application in the UK

From the perspective of the UK, whose courts will most likely be called upon to recognize or enforce the Austrian judgment, whether the Austrian court assumes jurisdiction based on Brussels I bis Regulation or the Hague Convention will ultimately matter little. The mere fact that recognition or enforcement of an Austrian judgment is sought before a court in the UK is enough to satisfy the criterion of internationality in Article 1(3) of the Hague Convention. The mere fact that the Austrian courts were nominated in an exclusive jurisdiction agreement would mean that an English court, for example, would enforce the Austrian judgment under Chapter II of the Hague Convention. That is so regardless of the basis on which the Austrian court ultimately assumes jurisdiction.