Skip to main content Accessibility help
×
Home
Hostname: page-component-5c569c448b-9hjnw Total loading time: 0.219 Render date: 2022-07-03T22:03:25.599Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "useRatesEcommerce": false, "useNewApi": true } hasContentIssue true

CONFLICTS OF JURISDICTION AND PARTY AUTONOMY IN EUROPE

Published online by Cambridge University Press:  07 December 2012

Get access

Abstract

Party autonomy provides certainty and predictability to the parties, reduces litigation costs, promotes the prompt assertion of jurisdiction by a court, and simplifies case management between different countries. However, the existence of an exclusive jurisdiction clause cannot completely extinguish conflicts of jurisdiction. Common law countries traditionally adopt discretionary instruments, such as forum non conveniens and anti-suit injunctions to tackle conflicts of jurisdiction. Both instruments work together in common law countries to create a balance between international comity and effective case management. The application of these two instruments, however, has been questioned in the European Union (EU). This article examines conflicts of jurisdiction in the Brussels I Regulation and particularly focuses on the effect of the European approach in cases involving a jurisdiction clause. It is submitted that the current Brussels regime in dealing with conflicts of jurisdiction and choice of court agreements demonstrates three weaknesses: procedural certainty takes priority over party autonomy; mutual trust and comity override justice in individual cases; and an artificial fragmentation of the internal and international market. It is expected that situations will be improved after the proposed amendment in the Recast Proposal and the Presidency Amendment is adopted, which provides harmonised choice of law rules to decide on the material validity of a jurisdiction clause and the negative kompetenz-kompetenz rule to decide on the preliminary issue of an exclusive choice of court agreement. Although the proposals do not accept the common law instruments to tackle conflicts of jurisdiction in cases with exclusive jurisdiction clauses, it may not be necessary to insist that forum non conveniens and anti-suit injunctions be adopted where a proper approach has been established to ensure the effectiveness of an exclusive jurisdiction clause and to provide for the priority of the courts in deciding on its validity. However, the European lawmaker should pay specific attention to the improvement of the functioning of the Regulation in the international context to tackle conflicts of jurisdiction in choice of court agreements involving a third country.

Type
Articles
Copyright
Copyright © T.M.C. Asser Instituut and Contributors 2012

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save article to Kindle

To save this article to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

CONFLICTS OF JURISDICTION AND PARTY AUTONOMY IN EUROPE
Available formats
×

Save article to Dropbox

To save this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you used this feature, you will be asked to authorise Cambridge Core to connect with your Dropbox account. Find out more about saving content to Dropbox.

CONFLICTS OF JURISDICTION AND PARTY AUTONOMY IN EUROPE
Available formats
×

Save article to Google Drive

To save this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you used this feature, you will be asked to authorise Cambridge Core to connect with your Google Drive account. Find out more about saving content to Google Drive.

CONFLICTS OF JURISDICTION AND PARTY AUTONOMY IN EUROPE
Available formats
×
×

Reply to: Submit a response

Please enter your response.

Your details

Please enter a valid email address.

Conflicting interests

Do you have any conflicting interests? *