Jurisdiction agreements: exclusive, optional and asymmetrical

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Accepted Manuscript (AM)
Author(s)
Keyes, Mary
Marshall, Brooke Adele
Griffith University Author(s)
Year published
2015
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The paradigm of the jurisdiction agreement designates a single, exclusive forum, allowing each party to determine, in advance of a dispute, the forum for litigation. The principles governing the enforcement of jurisdiction agreements are largely designed for this model. Some parties draft agreements that differ from this model, including agreements that purport to nominate multiple courts with “exclusive” jurisdiction, and unilateral optional agreements giving one party an option to select the forum after a dispute arises. These features raise the question of whether principles developed for the exclusive model regulate ...
View more >The paradigm of the jurisdiction agreement designates a single, exclusive forum, allowing each party to determine, in advance of a dispute, the forum for litigation. The principles governing the enforcement of jurisdiction agreements are largely designed for this model. Some parties draft agreements that differ from this model, including agreements that purport to nominate multiple courts with “exclusive” jurisdiction, and unilateral optional agreements giving one party an option to select the forum after a dispute arises. These features raise the question of whether principles developed for the exclusive model regulate jurisdiction agreements that depart from it. This article explores the approach to exclusivity under the Hague Choice of Court Convention, the Brussels I Recast, and at common law. We demonstrate that non-uniquely “exclusive” and unilateral optional jurisdiction agreements are uncomfortably accommodated within and inconsistently treated by these regimes, comparing, particularly, the acceptance of unilateral optional agreements in England with their rejection in France.
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View more >The paradigm of the jurisdiction agreement designates a single, exclusive forum, allowing each party to determine, in advance of a dispute, the forum for litigation. The principles governing the enforcement of jurisdiction agreements are largely designed for this model. Some parties draft agreements that differ from this model, including agreements that purport to nominate multiple courts with “exclusive” jurisdiction, and unilateral optional agreements giving one party an option to select the forum after a dispute arises. These features raise the question of whether principles developed for the exclusive model regulate jurisdiction agreements that depart from it. This article explores the approach to exclusivity under the Hague Choice of Court Convention, the Brussels I Recast, and at common law. We demonstrate that non-uniquely “exclusive” and unilateral optional jurisdiction agreements are uncomfortably accommodated within and inconsistently treated by these regimes, comparing, particularly, the acceptance of unilateral optional agreements in England with their rejection in France.
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Journal Title
Journal of Private International Law
Volume
11
Issue
3
Copyright Statement
© 2015 Taylor & Francis (Routledge). This is an Accepted Manuscript of an article published by Taylor & Francis in the Journal of Private International Law 23 Nov 2015, available online: https://doi.org/10.1080/17441048.2015.1106718
Subject
Conflict of laws (incl. private international law)