A Study On Choice-of-Court Agreements In Uniform Private International Law

In line with the historical global economic integration during the 20 th century and driven by the needs of the international civil and commercial intercourse,the principle of party autonomy has reigned supreme in modern private international law.In the field of international civil and commercial litigation,allowing the parties to choose the forum where their disputes shall be litigated has become common practice in almost all modern national systems.To eliminate the discrepancies on choice-of-court rules in various national laws and thereby to further enhance the validity and effects of choice-of-court agreements,international law community has witnessed a wave of uniform legislation,both regional and international,on choice-of-court agreements since the 1960 s.So far,The Brussels Regime for the European Union,the Lugano System for the European Free Trade Association,and the 2005 Hague Convention on Choice of Court Agreements have yielded the most promising fruit in this area.The present dissertation is dedicated to the study of the uniform rules for choice-of-court agreements under these three most important legislations.The aim of this study is to systemically compare and contrast the interpretation and application of these uniform rules,to discover and summarize their current status and to foresee their future developments,and also to advance in-depth discussions and reasonable assessments on certain emerging topics.In addition to the Introduction and Conclusion,the bulk of this dissertation consists of five Chapters.The first Chapter “The Uniform PIL Legislations on Choice-of-Court Agreements” lays down the systemic and operational background of each set of the uniform rules for choice-of-court agreements.Firstly,this Chapter introduces the system framework and historical development of the three uniform instruments.Then it goes on to discuss the application scope(territorial,time,personal and subject matter scope)of them.In light of the extensive overlap of their application scope among the three instruments and the rich judicial experiences accumulated by the Brussels Regime and Lugano Systems in this area,this may prove to be particularly helpful in understanding the interpretation and application of the relevant scope rules under the Hague Convention.Finally,for countries that are participants of two or all three legislations,conflicts of the application of different instruments could also arise,this calls for a thorough discussion of the application relationship between the three instruments.The second Chapter “The Validity Rules for Choice-of-Courts Agreements under Uniform PILs” is devoted to the discussion of the current status and future development of the uniform rules for determining the validity of choice-of-court agreements.Although not expressly provided for in their rules,all three legislations have been interpreted to require a factual choice-of-court consent by the parties;the ascertainment of this factual consent and its scope will be determined by the uniform autonomous principles independently of the law of any Member State.As to the formal validity of choice-of-court agreements,all three legislations also opt to preclude the application of any national law,instead they provide uniform formality rules that are designed to achieve both the objectives of certainty and flexibility;though the three instruments differ in the exact balance between these two objectives by adopting different formal validity requirements.In respect of the substantive validity of choice-of-court agreements,the three instruments refrain from providing uniform substantive rules and,to some extent,defer to the national laws of the Member States.However,in order to ensure the uniformity of the result,the scope of substantive validity issues,the determination of its governing law and the position on renvoi are still subject to the common rules laid down by the instruments.As for the specific question of the capacity of the contracting parties,the Brussels Regime has not yet provided a clear answer,the Lugano System still follows the traditional method of referring to the law of the court hearing the case(lex fori),while the Hague Convention adopts a “double applicability rule” favouring both the lex fori and the law of the chosen court.Finally,this Chapter explores some other relevant topics,such as the principle of independence of choice-of-court agreements and the validity of choice-of-court agreements for third parties.The third Chapter “The Effect Rules for Choice-of-Courts Agreements under Uniform PILs” deals with the current status and future development of the uniform rules for determining the effects of choice-of-court agreements.Firstly,a valid choice-of-court agreement will produce the basic prorogation and derogation effects,these effects are immune to the interferences of most national procedural rules such as forum non conveniens,but are still subject to the restraints of other procedural rules,such as the rules on exclusive jurisdiction,submissive jurisdiction,protective jurisdiction and national distributive jurisdiction provisions.Moreover,the lis pendens rule for parallel proceedings can also have a strong influence on the effects of choice-of-court agreements.To safeguard the effectiveness of choice-of-court agreements from abusive litigation tactics,the Brussels Regime has switched from the traditional “priority for the first hearing forum rule” to the modern “priority for the chosen forum rule”.This Chapter not only explores this evolution,but also review the interpretation and application of the modern “priority for the chosen forum rule”under different uniform instruments.Finally,after reviewing the different approaches on the effectiveness of the unilateral jurisdiction agreements before national courts,this Chapter analyses in detail the likely attitudes of all three uniform legislations towards unilateral jurisdiction agreements.The fourth Chapter “The Protective Rules for Choice-of-Court Agreements under Uniform PILs” focuses on the development and application of the rules for limited choice-of-court agreements in areas where the policy of protecting the weaker party is dominant.In relation to insurance matters,along with the gradual establishment of the European Single Insurance Market,the Brussels Regime and Lugano Systems respond to the imbalance in bargaining power between contracting parties by providing skewed general jurisdiction rules and limited choice-of-court freedoms for this area;on the other hand,since the international mass and small risk insurances market remains considerably restricted by national regulatory barriers,the Hague Convention choose to deal with large risk commercial insurances through the normal rules for choice-of-court agreements.In areas where the inequality between the contracting parties is obvious such as consumer contracts and employments contracts,the Brussels and Lugano Systems give consumers and employees protection by means of special jurisdictional rules(including limited rules for choice-of-court agreements)more favourable than those generally applicable;whereas for the lack of international consensus on the extent of protection afforded to these weaker parties,the Hague Convention has shy away from designing its own uniform rules for these areas and left them to the various national laws.It must be noted that in areas where the policy of protecting weaker parties is involved,to properly define the application scope of this policy is as important as to apply the protective jurisdictional rules itself,therefore,this Chapter not only discusses the interpretation and application of the relevant protective rules for choice-of-court agreements,but also examine the judicial experiences on the application scope of these rules by the Brussels and Lugano Systems,in the hope of shedding some light on the understanding of the corresponding legal concepts used in the Hague Convention.The fifth and last Chapter “The Remedial Rules for Choice-of-Court Agreements under Uniform PILs” explores the applicability of both traditional and emergent remedies available to the breach of choice-of-court agreements under the uniform legislations.As to the indirect remedy of refusing to recognize and enforce the relevant judgments,after reviewing the respective rules of recognition and enforcement of judgments under the three instruments,this Chapter has demonstrated the different approaches taken by the European and international legislations on this issue.With respect to anti-suit injunctions that mainly deployed by the common law systems,a study of the case law under the Brussels Regime and Lugano Systems shows that the overarching principle of mutual trust under the European legislations will prohibit the imposition of this remedy to the breach choice-of-court agreements;while an analysis of the legislative objectives,the operational background and the relevant legislative rules suggests that the Hague Convention adopts a neutral position on the applicability of the anti-suit injunction remedy that may be allowed in the national law of its Member States.Finally,in relation to the burgeoning practice of awarding damages for breach of choice-of-court agreements developed by some national laws,a thorough study of the nature of choice-of-court agreements,the all-important principle of mutual trust and the obligation to recognize and enforce other Member States’ judgments points to the conclusion that these two European legislations are unlikely to sanction the use of damages for the breach choice-of-court agreements,whereas the Hague Convention,as an international legislation with different global operational environment and less strict rules for the recognition and enforcement of judgments,remains neutral on this issue and the question of the applicability of damage remedies will be left to the relevant national laws.