Exclusive Choice Of Court Agreements Research Articles

Protection against the breach of choice of court agreements: A comparative analysis of remedies in English and German courts

In fixing the place and provider for the resolution of disputes in advance, choice of court agreements increase procedural legal certainty and the predictability of litigation risks. Hence, their protection is crucial. This article undertakes a functional comparison of the remedies for breach of exclusive choice of court agreements in English and German courts, painting a picture of different approaches to a common problem. English courts, now no longer constrained by EU law, employ an entire arsenal of remedies, most strikingly the anti-suit injunction and damages effectively reversing a foreign judgment. In contrast, German courts exercise greater judicial restraint, even though damages for the breach of a choice of court agreement have recently been awarded for the first time. Against this backdrop, two distinct but interrelated reasons for the diverging approaches are identified and analysed, the different conceptions of choice of court agreements and the different roles of comity and mutual trust.

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

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.

The Hague Convention on Choice of Court Agreements and the enforcement of forum-selection clauses in Indian private international law

The Hague Convention on Choice of Court Agreements (the HCCA) that came into effect on 1 October 2015, fundamentally regulates forum-selection clauses in international civil and commercial agreements and the manner in which, the courts of Contracting States shall enforce them. Although India is a member of the Hague Conference, it is yet to sign and ratify the HCCA. In the domestic realm, matters pertaining to jurisdiction are governed in India by the Code of Civil Procedure (CPC) 1908, with there being no particular provision to regulate the enforcement of forum-selection clauses in international matters. This article rummages to find whether Indian courts correspondingly enforce forum-selection clauses in international civil and commercial agreements, so as to suspend or dismiss proceedings in circumstances where the parties have made a choice in favour of an international court. Accordingly, it demonstrates the basis on which, Indian courts would uphold exclusive choice of court agreements in international civil and commercial matters, to draw the complementarities, if any, that exist in this respect, between the HCCA and Indian private international law.

Recognition and enforcement of mainland China’s civil and commercial judgments in Hong Kong – an update

ABSTRACTThe movement of judgments in civil and commercial matters between mainland China and Hong Kong has long been a problem, especially since the handover of Hong Kong from Great Britain to the People’s Republic of China on 1 July 1997. To partly resolve the problem, in 2006, mainland China and Hong Kong signed an Arrangement on mutual recognition and enforcement of judgments pursuant to exclusive choice of court agreements. However, even for this ‘narrow’ Arrangement, there have not been many successful cases publically reported in the past nine years or so. Nevertheless, two recent decisions from the Hong Kong Court of First Instance (HKCFI) probably can foreshadow the future trend of how Mainland judgments would be recognized and enforced in Hong Kong under the 2006 Judgments Arrangement and beyond. They could also pave the way for the possibly upcoming ‘broad’ Arrangement.

Exclusive choice of court agreements: some issues on the Hague Convention on choice of court agreements and its relationship with the Brussels I recast especially anti-suit injunctions, concurrent proceedings and the implications of BREXIT

This article contends that the system of “qualified” or “partial” mutual trust in the Hague Choice of Court Agreements Convention (“Hague Convention”) may permit anti-suit injunctions, actions for damages for breach of exclusive jurisdiction agreements and anti-enforcement injunctions where such remedies further the objective of the Convention. However, intra-EU Hague Convention cases may arguably23 not permit remedies for breach of exclusive jurisdiction agreements as they may infringe the principles of mutual trust and effectiveness of EU law (effet utile) underlying the Brussels I Recast Regulation. The relationship between Article 31(2) of the Brussels I Recast Regulation and Articles 5 and 6 of the Hague Convention is mapped in this article. It will be argued that the Hartley–Dogauchi Report’s interpretative approach has much to commend it as it follows the path of least resistance by narrowly construing the right to sue in a non-chosen forum as an exception rather than the norm. This exceptional nature of the right to sue in the non-chosen forum under the Hague Convention can be effectively reconciled with the Brussels I Recast Regulation’s reverse lis pendens rule under Article 31(2). This will usually result in the stay of the proceedings in the non-chosen court as soon as the chosen court is seised. The impact of Brexit on this area of the law is uncertain but it has been argued that the likely outcome post-Brexit is that the regime applicable between the UK and the EU (apart from Denmark) in relation to exclusive jurisdiction agreements within the scope of the Hague Convention will be the Hague Convention.

Chronology of Practice: Chinese Practice in Private International Law in 2015

This survey is composed of materials reflecting the practice of private international law in China in 2015. First, this survey covers the reports of the Supreme People’s Court (SPC) released in 2016, notably the Report on the Work of the SPC in 2015, which contains the statistics of the foreign-related civil or commercial cases accepted and concluded by Chinese courts. Second, the survey covers laws and judicial interpretations that were revised or took effect in 2015. The important legal instruments include: the Interpretations of the SPC on the Application of the Civil Procedure Law of the PRC, the Provisions of the SPC on Several Issues concerning the Application of Law to the Arrest and Auction of Ships, and the Reply of the SPC to the Request for Instruction by the Shanghai High People’s Court and Others on Issues Concerning Cases of Judicial Review of Arbitral Awards Rendered by the CIETAC and its Former Sub-Commissions. Third, this survey particularly focuses on typical cases decided by various Chinese courts during 2015 in the following areas: classification and definition of foreign elements, jurisdiction (exclusive choice of court agreements), choice of law (international air transport contracts, transfer of share agreements, foreign-related employment contracts), recognition and enforcement of foreign judgments, jurisdiction of the CIETAC and its former sub-commissions, validity of arbitration agreement, recognition and enforcement of foreign arbitral awards, and ad hoc arbitration.

Lis Pendens, Choice of Court Agreements and Abuse of Law Under Brussels Ibis

The Brussels Ibis Regulation aims to ‘improve the efficiency of choice of court agreements’ following widespread criticism of the Gasser judgment of the European Court of Justice. To this end, the Regulation introduces a priority mechanism in Article 31(2) in favour of the court designated in exclusive choice of court agreements. This article analyses, first, the problem, which the new priority mechanism in the Brussels Ibis Regulation intends to resolve. Second, it describes how the reforms in the Brussels Ibis Regulation address the practical issues raised by Gasser. In this regard, the relevance of the abuse of law doctrine in EU law will be discussed. Finally, the article considers the practical application of the new priority mechanism and in particular the standard of review the non-chosen court should adopt in applying Article 31(2) Brussels Ibis Regulation.

Exclusive Choice of Court Agreements: Some Issues on the Hague Convention on Choice of Court Agreements and its Relationship with the Brussels I Recast Especially Anti-Suit Injunctions, Concurrent Proceedings and the Implications of Brexit

This research paper argues that the Hague Convention’s system of ‘qualified’ or ‘partial’ mutual trust may permit anti-suit injunctions, actions for damages for breach of exclusive jurisdiction agreements and anti-enforcement injunctions where such remedies further the objective of the Convention. However, intra-EU Hague Convention cases may arguably not permit remedies for breach of exclusive jurisdiction agreements as they may be deemed to be an infringement of the principle of mutual trust and the principle of effectiveness of EU law (effet utile) which animate the multilateral jurisdiction and judgments order of the Brussels I Recast Regulation. The dynamics of the relationship between Article 31(2) of the Recast Regulation and Articles 5 and 6 of the Hague Convention will also be mapped in this paper. It will be argued that the Hartley-Dogauchi Report’s interpretative approach has much to commend it as it follows the path of least resistance by narrowly construing the right to sue in a non-chosen forum as an exception rather than the norm. This exceptional nature of the right to sue in the non-chosen forum under the Hague Convention can be effectively reconciled with the Brussels I Recast Regulation's reverse lis pendens rule under Article 31(2). This will usually result in the stay of the proceedings in the non-chosen court as soon as the chosen court is seised. The likely outcome post-BREXIT is that the regime applicable between the UK and the EU (apart from Denmark) in relation to exclusive jurisdiction agreements within the scope of the Hague Convention will be the Hague Convention.

Jurisdiction and Arbitration Agreements and Their Enforcement

Jurisdiction and Arbitration Agreements and Their Enforcement , (3rd edition), by David Joseph QC, Sweet & Maxwell, 2015. With the first edition of Jurisdiction and Arbitration Agreements and Their Enforcement , David Joseph QC identified and addressed a notable gap in the literature available to practitioners. While there were (and are) of course well-established and excellent texts on, eg the Brussels Regulation and agreeing and enforcing arbitration agreements, David Joseph brought together a broad number of topics that have traditionally been dealt with separately in the literature, but which in fact fit together well and benefit from being addressed in that way. Reading the Third Edition some 10 years down the line, one is struck by how well this approach has stood the test of time, and how useful this book has become to the practitioner in providing a comprehensive but accessible text on the complex scheme of laws and treaties that govern the establishment and enforcement of jurisdiction and arbitration agreements. Despite the scope of the work, and the inevitable detail that certain of the topics demand, the clarity of the structure of this Third Edition and of David Joseph’s writing is such that this text can be used by those who know little of the law of transnational dispute resolution as well as those with a deep or academic interest in the area. For the arbitration practitioner, the changes of most immediate interest in the Third Edition will concern the wealth of recent jurisprudence that has been introduced and is the subject of David Joseph’s commentary and occasional criticism, in particular on court proceedings competing with the jurisdiction of an arbitral tribunal. However, all but those with the most confined of practices will benefit from the exposition in the Third Edition of the important changes introduced by the Brussels I Regulation Recast and also of the Hague Convention on Exclusive Choice of Court Agreements that entered … [↵][1]*QC, Essex Court Chambers. swordsworth{at}essexcourt.net [1]: #xref-corresp-1-1

The death of the torpedo action? The practical operation of the Recast's reforms to enhance the protection for exclusive jurisdiction agreements within the European Union

The Brussels I Recast introduces a priority mechanism in favour of the court designated in exclusive choice of court agreements, which is designed to enhance the protection for such agreements in the EU. However, little attention has been paid to how this mechanism is intended to operate in practice and what must be shown before a non-chosen court is obliged to stay their proceedings in favour of the chosen court. This article considers this question and assesses whether there remains any scope for parties to bring a “torpedo” action in order to derail proceedings in the chosen court.

Hague Convention on Choice of Court Agreements

The States Parties to the present Convention, Desiring to promote international trade and investment through enhanced judicial co-operation,Believing that such co-operation can be enhanced by uniform rules on jurisdiction and on recognition and enforcement of foreign judgments in civil or commercial matters,Believing that such enhanced co-operation requires in particular an international legal regime that provides certainty and ensures the effectiveness of exclusive choice of court agreements between parties to commercial transactions and that governs the recognition and enforcement of judgments resulting from proceedings based on such agreements,

An update on the proposed Hague Convention on exclusive choice of court agreements

This article discusses the background to, and main features of, the Convention on Exclusive Choice of Court Agreements. Further, it highlights the lack of protection afforded to weaker parties in the current convention text of April 2004 (The full Convention text is available at: http://www.cptech.org/ecom/jurisdiction/hague-100e.doc.). Suggestions for improvement are provided in this respect, and some thoughts are expressed about the direction of the future work of the Hague Conference on Private International Law.