The Hague and the Ditch: the trans-Tasman judicial area and the Choice of Court Convention

Abstract

Australia and New Zealand were both actively involved in the development of the text of the Hague Choice of Court Agreements Convention. However, even if the Convention were soon to be ratified and implemented in either country, it is likely that both countries will have already given full effect to the Agreement on Trans-Tasman Court Proceedings and Regulatory Enforcement that they concluded in 2008. This bilateral Trans-Tasman Treaty will introduce a jurisdiction and judgments scheme for all Australian (whether federal or state) and New Zealand courts for proceedings begun by process served anywhere in the Trans-Tasman area. The exercise of jurisdiction in any court will depend almost entirely on the principles of forum conveniens, and the enforcement of judgments between the two countries will be subject to almost no restraint. After undertaking a critique of the new Trans-Tasman scheme, the author considers the differences between the provisions relating to jurisdiction and judgments under the Trans-Tasman Treaty and those of the Choice of Court Convention. The Convention’s strong emphasis on giving effect to contracting parties’ choices, and the way that it characterises an exclusive choice of court agreement, differ markedly from the present approach taken in Australia (in particular) and in New Zealand to the characterisation of choice of court agreements, and the effect to be given to them – and also differ markedly from the likely approach to these issues under the Trans-Tasman Treaty. Further, the Choice of Court Convention gives greater opportunities for the cross-border enforcement of a judgment to be resisted than the Trans-Tasman Treaty will. The author nevertheless concludes that there are important aspects of the Convention’s rules for jurisdiction and judgments that Australia and New Zealand would best adopt, even in bilateral arrangements between them for exercising jurisdiction and enforcing civil judgments transnationally.