A Study On The Law Application Of The America Forum Selection Agreement

In international civil litigation,since the consensual jurisdiction system has important practical values such as avoiding conflicts of jurisdiction,improving certainty and predictability in dispute resolution,and effectively saving judicial resources,it is now widely adopted by almost all countries in the world and is preferred by the parties of international trade contracts.Under the foreign-related consensual jurisdiction system,the precondition for a country to exercise jurisdiction is that there is an effective and enforceable forum selection agreement between the parties.However,there are differences in the provisions of national laws regarding the system of consensual jurisdiction.In the case of foreign-related consensual jurisdiction,the court must decide what kind of law to apply to adjust the validity and enforcement of the forum selection agreement,that is,the law application of the forum selection agreement.The Bremen case of 1972 was a benchmark for the United States to recognize the validity of forum selection agreement.The US Supreme Court established the “reasonability criteria”in the case.Since Bremen,the US courts at all levels have invoked the “ rationality standard ” in dealing with cases under the consensual jurisdiction.This is the law of the United States forum law to decide the enforcement and the substantive validity of forum selection agreement.In practice,regardless of whether the agreement contains a choice of law clause,the court always applies the forum law.In the Yavuz case of 2006,the US courts made a major shift in the attitude of choosing the law of the forum selection agreement.The Tenth Circuit Court rethinks the practice of spontaneously applying the forum law,considering the certainty and predictability of the application of the law and respecting the autonomy of the parties,finally applying the chosen law to explain the forum selection agreement.In the 2007 Phillips case,the Second Circuit Court went further on the Yavuz case,and considered applying the different laws to the interpretation and enforceability of the choice of court agreement.The court held that the enforceability of agreement was a procedural issue,and forum law should be applied;and the interpretative question should be the same as the general contract,and the chosen law should be applied.It can be inferred that the court regards the interpretative question as the nature of the entity and then applies different laws according to different natures,which provides a certain theoretical basis for the "dépe?age".After the Yavuz and Phillips cases,more and more courts have considered the chosen law when analyzing the forum selection agreement.The "dépe?age" has been widely used in the law application of the US forum selection agreement.The "dépe?age" breaks the definition of the complete procedural nature of the choice of court agreement by the "single theory".It not only sees the procedural nature of forum selection agreement,but also notes the substantive respects.Applying the law chosen by the parties to its interpretation not only respects the autonomy of the parties,but also facilitates the certainty and predictability of the application of the law;applies the forum law to enforcement issues,complies with basic principle that procedural issues applies to forum law,it is also beneficial to the national considerations of the protection of the weak and public policy and other interests.In the judicial practice of our country,the law applicable to the forum selection agreement is dominated by the law of the court,lacking certainty and predictability,leading to the selection of courts and the negative conflicts of jurisdiction,neglecting the autonomy of the parties.The "dépe?age" of the United States has rationality and can provide ideas for perfecting the law application of China's forum selection agreement.First,the nature of the choice of court agreement must be properly defined.The implementation of the agreement involves the jurisdiction and litigation of the nation,has procedural nature;the validity and interpretation of the agreement is not different from the general contract,has a substantive nature.Therefore,the choice of court agreement should be considered as a combination of procedural and substantive nature.Second,depending on the nature of the forum selection agreement applies different laws.The enforceability of agreement was a procedural issue,according to the principles that the procedural issues should apply the forum law,The forum law should be applied.The validity and interpretation of the agreement is a substantive issue.The party's autonomy should be respected and the law chosen by the parties should be applied.