Sooksripaisarnkit, P and Garimella, SR, Choice of court agreements: selected common-law jurisdiction and Indian laws compared time for the convention of 30 June 2005 on choice of court agreements?, Journal of Transnational Law & Policy, 30 pp. 1-58. ISSN 1067-8182 (2021) [Refereed Article]
Copyright 2021 Journal of Transnational Law & Policy
A jurisdiction clause or agreement (sometimes called a forum selection clause or a choice of court agreement) is a commonplace feature in international commercial contracts and dealings. One of the reasons why parties agree to such a clause is to eliminate or contain a "venue risk"-a risk that a claimant may be prevented from suing in its favorable forum or that a defendant is sued in an unfavorable forum. Legal issues surrounding a jurisdiction clause, however, are complex because of a need to identify the particular type of the concerned jurisdiction clause, as each type confers different rights and obligations to the parties. This has led to a trend that has since shifted the focus of case laws and commentaries on private international law from that of the choice of law. A jurisdiction clause can be either an exclusive jurisdiction clause, a nonexclusive jurisdiction clause, or a "submission to suit" clause. In the spectrum between exclusive and nonexclusive jurisdiction clauses, there are also myriad variants of asymmetric jurisdiction clauses. Identifying and distinguishing between different types of these jurisdiction clauses therefore becomes crucial in the context of the domestic private international law system of each country. Toward this, in Part I of this research, the authors will explore different types of jurisdiction agreements and the techniques employed to distinguish between them. In doing so, the focus will be on the private international law systems of common-law countries with mature developments of the law in this field. As such, the law of the United Kingdom comes to the forefront since it is where common-law authorities originated. With the same root, in Australia, where one of the authors is based, courts have since taken their own pace and path in developing a body of case laws and jurisprudence in this field. Thus, Australian authorities will likewise be explored. References will also be made to case law from Canada and Singapore insofar as they are relevant, given voluminous case laws with opinions and observations from judges in these jurisdictions. The laws of the United States, however, will be excluded from consideration due to the serious lack of uniformity from different practices in state and federal courts.
In contrast, while India inherited the common-law system and its private international law developments could be traced back to its colonial legacy, there has been a serious lack of comprehensive law on cross-border commercial matters. Notably, the position concerning forum selection clauses remains unclear, nor can clarity be gleaned from judicial precedents there. Therefore, the focus of Part II of this research will be specific to the context of India and how its legal system deals with jurisdiction clauses, taking a comparative approach to the laws of those more mature legal systems examined in Part I.
Notwithstanding problems pertaining to the laws relating to jurisdiction clauses in common-law countries, the Convention of June 30, 2005 on Choice of Court Agreements (hereinafter HCCCA) has become increasingly relevant. In Singapore, it came into force on October 1, 2016. In Australia, the preparation for the enactment of an "International Civil Law Act" to give effect to the HCCCA is reportedly underway. Following some confusions caused by the Brexit developments, on September 28, 2020, the United Kingdom ratified the HCCCA. Within the context of the HCCCA, at first sight, the need to distinguish between different types of jurisdiction agreements appears less relevant. Despite its primary application to the "exclusive jurisdiction agreement," there exists a presumptive mechanism in Article 3(b) that provides that "a choice of court agreement which designates the courts of one Contracting State or one or more specific courts of one Contracting State shall be deemed to be exclusive unless the parties have expressly provided otherwise." However, this highlights the fine line between the task of a court to construe a jurisdiction clause and the readiness of a court to resort to the presumption. In the end, the question becomes when or under what circumstances the presumption should be invoked. The overall framework of the HCCCA and the presumptive mechanism will be analyzed in Part III.
Finally, in Part IV, the present authors will offer their analysis as to whether India could benefit from acceding to the HCCCA. Otherwise, what lessons can India take from experiences from its more mature common-law counterparts? And what lessons can it take from the HCCCA?
|Item Type:||Refereed Article|
|Keywords:||jurisdiction agreements, choice of court convention|
|Research Division:||Law and Legal Studies|
|Research Group:||International and comparative law|
|Research Field:||Conflict of laws (incl. private international law)|
|Objective Division:||Law, Politics and Community Services|
|Objective Group:||Justice and the law|
|Objective Field:||Civil justice|
|UTAS Author:||Sooksripaisarnkit, P (Dr Poomintr Sooksripaisarnkit)|
|Deposited By:||Maritime and Logistics Management|
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