Determination Of The Validity Of Forum Selection Clause

Most legal systems give parties the right to grant jurisdiction to certain court by agreement without prejudice to the exclusive jurisdiction of the country,regardless of whether it is before or after the dispute between them has been,which is called consensual jurisdiction in international civil litigation.The basis that one court exercises consensual jurisdiction is that there is an effective forum selection clause between parties.Therefore,how to determine the validity of forum selection clause and choosing to which country's law to find its effectiveness are very necessary.In the legislation and judicial practice of various countries and international organizations,there are many different views and theories about the validity of forum selection clause and its applicable law.Therefore,it is of great significance to explore this two questions in this circumstance when summaring the existing legislation and practices.First,this research will compare the main countries' legislation and international conventions in civil law system,common law system and international organizations based on the existing research foundation of scholars.Secondly,this research intends to summarize the development trend and useful experience about the validity of forum selection clause and its applicable law by combining relevant cases.In addition,this research will discuss the Civil Procedure Law of the People's Republic of China(2012 Amendment)and try to identify the shortages of provisions related to consensual jurisdiction through reviewing Chinese cases.In conclusion,the thesis plans to provide targeted suggestions and put forward specifically designed provisions with a comparative method,hoping to optimize the relevant legislation in our country.The main body of this thesis is divided into four chapters apart from the introduction and the conclusion:The first chapter outlines the forum selection clause,including its definition,classification,scope,inherent rationality and so on.It also relates to the nature of the forum selection clause,whether we should treat it in theory of monology or segmentation,and whether we should treat it as procedural rule or entity rule,or make a compromise between the two as a litigation contract.The second chapter is the key part of this article,mainly discussing the effectiveness of the forum selection clause,which is also called how to determine the validity of the forum selection clause,including the form of it requires,its substantive requirements,and whether it is independent from the main contract.Each part of this chapter will compare horizontally the existing legislative and judicial practice of different countries and international organizations.The substantive elements of forum selection clause can be classified as positive elements of positive provisions and negative elements of negative constraints.The third chapter is also the key part of this thesis,mainly discussing the applicable law of the forum selection clause,that is,its application of law.This chapter begins to analyse from the existing four different theoretical doctrines,compares horizontally the existing legislation and practice of different countries and international organizations and analyse their theoretical basis and pros and cons.Through the analysis and comparison of the previous chapters,the fourth chapter will discuss the provisions about forum selection clause,then put forward some suggestions for supplement aiming at improving the existing problems by combining the judicial practices in our country.