Damages Of Breach Of The Choice-Court-Agreement

Based on the basic principle of "the defaulting party is entitled to damages for breach of contractual obligations",a party who has not breached a choice-of-court agreement shall be entitled to damages in accordance with applicable law.Damages for breach of the choice-of-court agreement were first developed in a few countries such as the United Kingdom.This relief measure is conducive to guaranteeing the stability of the validity of the choice-of-court agreement,maintaining the spirit of contract,and conforming to the trend of developing protocol jurisdiction in the modern international civil and commercial litigation field.However,the widespread adoption and application of awarding damages for breach of the choice-of-court agreement in modern countries still needs to overcome the legal obstacles to the qualitative nature of the choice-of-court agreement,resolve the theoretical difficulties of the suitability of the choice-of-court agreement,and break through international comity and res judicata.A choice-of-court agreement is a type of mixed agreement with both procedural and contractual attributes.Damages for breach of a choice-of-court agreement shall be deemed to be a matter of substance.If a court determines that a choice-of-court agreement is valid according to the applicable law,the party that has not breached a choice-of-court agreement have the right to claim damages for breach of contract.At the same time,if the constituent elements of the tort liability are met,the party that has not breached a choice-of-court agreement has the right to claim damages for the tort.In addition,in order to avoid negatively affecting international comity or to easily accept the constraints of the res judicata of non-selected courts,For malicious violations of the chosen court agreement and deliberate selection of non-selected court actions,the court has the right to choose to refuse to recognize and enforce the non-selected court's judgment and retain the ability to provide remedies to the parties Due to different claims,damages for breach of a choice-of-court agreement will also deal with different degrees of operational difficulties.It is embodied in four aspects:determination of jurisdiction,recognition and enforcement of damages judgments,distribution of burden of proof and quantification of the scope of damages.Currently,considering the effectiveness of remedies for breach of a choice-of-court agreements and China's existing scheme for regulating breach of a choice-of-court agreement,China's legislation and practice should treat the nature of a choice-of-court agreement differently,take a more open and inclusive attitude to the rules of jurisdiction,use the method of legislative breakthroughs to meet the value pursuit of damages for breach of a choice-of-court agreement in China,and combine China's litigation cost rules and judicial practice to change the lawyer's fees to be borne by the parties themselves.In the end,China will consider operating this new type of relief plan in the modern international civil and commercial litigation field.