3 one of the spouses had not attained the minimum age required for marriage, nor had obtained the necessary dispensation; or

4 one of the spouses did not have the mental capacity to consent; or

5 one of the spouses did not freely consent to the marriage.

However, recognition may not be refused where, in the case mentioned in subparagraph 1 of the preceding paragraph, the marriage has subsequently become valid by reason of the dissolution or annulment of the prior marriage.

Article 12

The rules of this Chapter shall apply even where the recognition of the validity of a marriage is to be dealt with as an incidental question in the context of another question.

However, these rules need not be applied where that other question, under the choice of law rules of the forum, is governed by the law of a non-Contracting State.

Article 13

This Convention shall not prevent the application in a Contracting State of rules of law more favourable to the recognition of foreign marriages.

Article 14

A Contracting State may refuse to recognize the validity of a marriage where such recognition is manifestly incompatible with its public policy ('ordre public').

Article 15

This Chapter shall apply regardless of the date on which the marriage was celebrated.

However, a Contracting State may reserve the right not to apply this Chapter to a marriage celebrated before the date on which, in relation to that State, the Convention enters into force.

Article 16

A Contracting State may reserve the right to exclude the application of Chapter I.

Article 17

Where a State has two or more territorial units in which different systems of law apply in relation to marriage, any reference to the law of the State of celebration shall be construed as referring to the law of the territorial unit in which the marriage is or was celebrated.

Article 18

Where a State has two or more territorial units in which different systems of law apply in relation to marriage, any reference to the law of that State in connection with the recognition of the validity of a marriage shall be construed as referring to the law of the territorial unit in which recognition is sought.

Article 19

Where a State has two or more territorial units in which different systems of law apply in relation to marriage, this Convention need not be applied to the recognition in one territorial unit of the validity of a marriage entered into in another territorial unit. Article 20

Where a State has, in relation to marriage, two or more systems of law applicable to different categories of persons, any reference to the law of that State shall be construed as referring to the system of law designated by the rules in force in that State.

Article 21

The Convention shall not affect the application of any convention containing provisions on the celebration or recognition of the validity of marriages to which a Contracting State is a Party at the time this Convention enters force for that State. This Convention shall not affect the right of a Contracting State to become a Party to a convention, based on special ties of a regional or other nature, containing provisions on the celebration or recognition of validity of marriages.

Article 22

This Convention shall replace, in the relations between the States who are Parties to it, the Convention Governing Conflicts of Laws Concerning Marriage, concluded at The Hague, the 12th of June 1902.

Article 23

Each Contracting State shall, at the time of signature, ratification, acceptance, approval or accession, inform the Ministry of Foreign Affairs of the Netherlands of the authorities which under its law are competent to issue a marriage certificate as mentioned in Article 10 and, subsequently, of any changes relating to such authorities.

The Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Thirteenth Session.

It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Netherlands.

Article 25

Any other State may accede to the Convention. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands.

Article 26

Any State may, at the time of signature, ratification, acceptance, approval or accession, declare that the Convention shall extend to all the territories for the international relations of which it is responsible, or to one or more of them. Such a declaration shall take effect at the time the Convention enters into force for that State.

Such declaration, as well as any subsequent extension, shall be notified to the Ministry of Foreign Affairs of the Netherlands.

Article 27

A Contracting State which has two or more territorial units in which different systems of law apply in relation to marriage may, at the time of signature, ratification, acceptance, approval or accession, declare that the Convention shall apply to all its territorial units or only to one or more of them, and may extend its declaration at any time thereafter.

These declarations shall be notified to the Ministry of Foreign Affairs of the Netherlands, and shall state expressly the territorial unit to which the Convention applies.

Article 28

Any State may, not later than the time of ratification, acceptance, approval or accession, make one or more of the reservations provided for in Articles 6, 15 and 16. No other reservation shall be permitted.

Any State may at any time withdraw a reservation it has made. The withdrawal shall be notified to the Ministry of Foreign Affairs of the Netherlands. The reservation shall cease to have effect on the first day of the third calendar month after the notification referred to in the preceding paragraph.

Article 29

The Convention shall enter into force on the first day of the third calendar month after the deposit of the third instrument of ratification, acceptance, approval or accession referred to in Articles 24 and 25.

Thereafter the Convention shall enter into force

1 for each State ratifying, accepting, approving or acceding to it subsequently, on the first day of the third calendar month after the deposit of its instrument of ratification, acceptance, approval or accession:

2 for a territory to which the Convention has been extended in conformity with Article 26, on the first day of the third calendar month after the notification referred to in that Article.

Article 30

The Convention shall remain in force for five years from the date of its entry into force in accordance with the first paragraph of Article 29 even for States which subsequently have ratified, accepted, approved it or acceded to it.

If there has been no denunciation, it shall be renewed tacitly every five years. Any denunciation shall be notified to the Ministry of Foreign Affairs of the Netherlands, at least six months before the expiry of the five year period. It may be limited to certain of the territories or territorial units to which the Convention applies.

The denunciation shall have effect only as regards the State which has notified it. The Convention shall remain in force for the other Contracting States.

Article 31

The Ministry of Foreign Affairs of the Netherlands shall notify the States Members of the Conference, and the States which have acceded in accordance with Article 25, of the following

1 the signatures and ratifications, acceptances and approvals referred to in Article 24;

2 the accessions referred to in Article 25;

3 the date on which the Convention enters into force in accordance with Article 29;

4 the extensions referred to in Article 26;

5 the declarations referred to in Article 27;

6 the reservations referred to in Articles 6, 15 and 16, and the withdrawals referred to in Article 28;

7 the information communicated under Article 23;

8 the denunciations referred to in Article 30.

In witness whereof the undersigned, being duly authorised thereto, have signed this Convention.

day of

Done at The Hague, on the 19 in the English and French languages, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Government of the Netherlands, and of which a certified copy shall be sent, through the diplomatic channel, to each of the States Members of the Hague Conference on Private International Law at the date of its Thirteenth Session.

Final Act of the Thirteenth Session of the Hague Conference, pp. 9-13. The Session also formulated a draft Convention on the Law Applicable to Matrimonial Property Regimes, and it instituted a Special Commission to prepare a text of a draft convention on agency, based on the deliberations of the Thirteenth Session.

§ 3

International Commercial Arbitration

Arbitration Clauses

In Sam Reisfeld & Son Import Co. v. S. A. Eteco, 530 F.2d 679 (1976), the U.S. Court of Appeals for the Fifth Circuit held, on April 26, 1976, that enforceability of the arbitration clause in an agency contract was governed exclusively by the Federal Arbitration Act of 1925 (9 U.S.C. 1-14), rather than by principles relating to forumselection clauses in international agreements.

The New Orleans firm of Reisfeld & Son, which acted as exclusive sales representative for S. A. Eteco, a subsidiary of a Belgian wire products manufacturer, entered into a contract with Eteco containing an arbitration clause requiring all disputes to be settled by arbitration in Coutrai, Belgium. When Eteco notified Reisfeld it was terminating the contract and distributing its products directly,

Reisfeld sued for breach of contract and asserted a tort claim for misuse of confidential customer information and alleged antitrust violations. When defendants moved to dismiss for lack of jurisdiction, the District Court for the Eastern District of Louisiana treated the motion as one seeking a stay pending arbitration and stayed all but the antitrust claims.

In the Court of Appeals, Reisfeld urged that the forum chosen for arbitration was so unreasonable that it either vitiated the arbitration clause altogether or required transfer to a more neutral situs. The Court affirmed the District Court's ruling. It held that Reisfeld's attack faltered on its initial premise that the unreasonableness test used in M/S Bremen v. Zapata Offshore Co., 407 U.S. 1 (1972), is applicable to arbitration clauses. It added:

[We agree with the District Court that the enforceability of the arbitration clause at issue is governed exclusively by the explicit provisions of the Federal Arbitration Act . . . . Under the Act, a party seeking to avoid arbitration must allege and prove that the arbitration clause itself was a product of fraud, coercion, or "such grounds as exist at law or in equity for the revocation of any contract."... This stringent standard has not been modified by the Supreme Court's recent decision in Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974). The Court in Scherk upheld a stay pending arbitration even though the plaintiffs asserted a claim under the Federal securities law. The references to Bremen in that case were made to emphasize the Court's rejection of a provincial approach in favor of the policy of giving effect to the agreement of the parties in international transactions, not to incorporate the Bremen standards wholesale to situs selections in arbitration clauses. If anything, Scherk strengthens defendants' position by insisting upon liberal enforcement of arbitration clauses in multinational contexts. Since Bremen is inapplicable, the District Court did not need to reach the question of whether the selection of Coutrai was unreasonable under the circumstances here presented.

The Appeals Court ruled that the antitrust claims should proceed to trial since such claims are generally not arbitrable.

In Hanes Corp. v. Millard, 531 F.2d 585 (1976), the assignee of a U.S. patent brought suit for (1) declaratory judgment as to the scope and validity of the patent, and (2) a determination that the royalty claims of the assignors who were French citizens were barred by the statute of limitations. The assignment contract contained a clause on arbitration of all disputes arising from its interpretation or “issuing from it." The U.S. District Court for the District of Columbia declared that any claim arising from the assignment contract was barred by the statute of limitations, and the assignors appealed.

The Court of Appeals, on January 30, 1976, vacated the declaratory judgment and remanded the case. It noted that the district judge would not have acted improperly had he entertained and proceeded to resolution of the matter of the scope and validity of the patent even though the patent had expired. But, said the Court, he should not have exercised jurisdiction to render a declaratory judgment that any claim arising from the assignment contract was barred by the statute of limitations where the parties contemplated that any contractual disputes would be resolved by an arbitration board. The opinion stated, in part:

With respect to Count I of Hanes' complaint, . . . there is a strong interest in having questions of patent scope and validity adjudicated in the Federal courts. . . . [T]he alternative to an anticipatory Federal adjudication in this case is to leave the issues of patent scope and validity to confront the arbitration panel. Such issues involve complex and difficult questions in applying an extremely technical body of law. They are questions that may be unfamiliar to arbitrators, particularly if members of the panel are not lawyers or are citizens of a foreign country. In addition, the expertise of arbitrators has always lain in resolving, perhaps by way of compromise, contractual disputes rather than in interpreting the import of complicated Federal legislation. . . . And if, partly for these reasons, an arbitration panel were to determine that the issues of patent law were not arbitrable, . . . .. [I]t is possible that the next tribunal to face these issues-most likely one called upon to review or enforce an arbitration award-would be a court in a foreign country, again not a desirable forum for determining the scope and validity of [a] United States Patent.... We conclude, therefore, that the district judge would not have acted improperly had he entertained and proceeded to resolution of the declaratory relief that was originally sought. With respect to Count II, however the request for a declaration that any contractual claim would be barred by the statute of limitations-the balance of factors is quite different. . . . [T]here is present in this case no important policy to counteract the inappropriateness of considering declaratory relief as to an expired patent. In fact, there is at least one important additional reason why it would be improper to exercise discretion over this claim.

In our view the parties contemplated that contractual disputes growing out of the assignment contract would be resolved not by the U.S. District Court in the District of Columbia-or indeed by any court-but rather by an arbitration board pursuant to the rules and regulations of the International Chamber of Commerce. The propriety of declaratory relief must be judged with reference to whether the issue in question is more properly resolved in another forum. . . . Here the parties before us negotiated a broad arbitration agreement. . . . The Federal courts have recognized a strong Federal policy in favor of voluntary commercial arbitra