Cooperative Federalism: A Viable Option for Implementing the Hague Convention on Choice of Court Agreements
Citation: 102 Geo L.J. 1821 (2014)
“It has been said that arguing against globalization is like arguing against the law of gravity.”
The effects of globalization are indisputable. With the growth of international commerce, private business relationships cross borders now more than ever. Along with the expansion of the global economy, however, disputes arising from private international business transactions have also increased significantly in the last twenty years. Acknowledging the need for “an international legal regime that provides certainty” to private parties in international transactions, the international community came together in 2005 to complete negotiations on the Hague Convention on Choice of Court Agreements (the Convention). The Convention is a treaty that sets rules for the enforcement of private-party agreements on forum selection clauses, as well as the enforcement and recognition of foreign judgments in domestic courts.
In 2009, the United States became a signatory to the Convention, but the United States will not become a party to the Convention until the U.S. Senate gives its advice and consent and the Convention is ratified. Supporters of the Convention have focused on the need for increased certainty and uniformity in an international business environment. Much has been written on the benefits of uniformity and the arguments for ratification of the Convention. This Note, however, focuses on the effects ratification of the Convention would have on both state and federal court jurisdiction and addresses different approaches of implementation.
This Note will argue that, because the Convention deals with issues traditionally left to the states, the Convention should not be implemented through federal legislation only. This Note concludes that cooperative federalism is the most viable approach to implement the Convention. Cooperative federalism is a balanced form of government in which both the states and the federal government share regulatory authority. The states can implement regulations through state law but within a framework set out by the federal government.