DETERMINING THE APPROPRIATE FORUM BY THE APPLICABLE LAW

Abstract

AbstractThe concepts of jurisdiction and applicable law have been traditionally regarded as separate inquiries in private international law: a court only considers the applicable law once it has decided to adjudicate a matter. While such an approach still generally applies in civil law jurisdictions, in common law countries the concepts are increasingly intertwined. This article examines the relationship between jurisdiction and applicable law in two key areas: applications to stay proceedings on the ground of forum non conveniens and to enforce foreign exclusive jurisdiction agreements. While courts generally apply the principle that jurisdiction and applicable law should coincide where possible, there are circumstances where a court may retain jurisdiction despite a foreign governing law or may ‘trust’ a foreign tribunal to apply the law of the forum. This article seeks to establish a framework by which courts may assess the role of the applicable law in forum determinations.