Finding A Proper Nexus For Constructing Specific (Special) Jurisdiction Regarding Commercial Contract and Tort Cases: A Comparative Study of the us and European Approaches

Abstract

More than a decade's efforts of the Hague Conference on Private International Law have resulted in the Convention on Choice of Court Agreements concluded on 30 June 2005. However, compared with the original proposal, this Convention is rather a limited achievement indeed. The failure of the Hague negotiations for a broad jurisdiction and judgments convention provides an opportunity to reflect on which approach is better. This article tries to exhaustively examine this issue. To this end, Section B will critically review specific jurisdiction for commercial contract and tort cases in the US. Section C will critically explore special jurisdiction for commercial contract and tort cases in the European states, ie under the Brussels regime. While Sections B and C intend to tell the reader what the situation is respectively in the two systems, emphasis will be put on the different nexuses utilised for constructing specific (special) jurisdiction. Section D will compare the US approach and the European approach and examine the consequent differences in practice. Section E will analyse the advantages and disadvantages of the two different approaches. Based on the analysis of the previous sections, Section F will draw a conclusion on which approach is better.