The concepts of “injustice” and “public policy” in Article 6(c) of the Hague Choice of Court Convention

Abstract

Article 6(c) of the Hague Choice of Court Convention (“Convention”) authorises courts seised (albeit not chosen) to ignore exclusive choice of court agreements at the jurisdictional stage if the effect of the agreement would lead to a “manifest injustice” or would be “manifestly contrary” to the public policy “of the State of the court seised”. Many seem to assume that only the domestic law of the State of the court seised matters in this context. Yet, a more nuanced interpretation is suggested in this article in the interest of furthering the Convention’s uniform interpretation. Article 6(c) establishes autonomously at treaty level concepts of injustice and public policy. These concepts do not exhaustively regulate when a court may rely on Article 6(c). However, they do define the potential scope (outer limits) of reliance on injustice and public policy concerns that a court seised (albeit not chosen) may make on the basis of domestic law.