Agreements on Jurisdiction and Choice of Law

Hardcover | April 17, 2008

byAdrian Briggs

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This book analyses the law and practice relating to the classification, drafting, validity and enforcement of contracts relating to jurisdiction and choice of law. The focus is on English law, EU law and common law measures, but there is also some comparative material built in. The book willbe useful in particular to practising lawyers seeking to draft, interpret or enforce the types of contract discussed, but the in-depth discussion will also be valuable to academic lawyers specialising in private international law. Written by an academic who is also a practising barrister, this book gives in-depth coverage of how the instruments and principles of private international law can be used for the resolution of cross-border or multi-jurisdictional disputes. It examines the operation and application of the BrusselsRegulation, the Rome Convention and the Hague Convention on Exclusive Choice of Court Agreements in such disputes, but also discusses the judgments and decisions of the courts in significant cases such as Turner v Grovit, Union Discount v Zoller, and De Wolf v Cox.Much of the book is given over to practical evaluation of how agreements on jurisdiction and choice of law should be put together, with guidance on, amongst other things, drafting of the agreements (including some sample clauses), severability of agreements, consent, and the resolution of disputesby arbitration.

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This book analyses the law and practice relating to the classification, drafting, validity and enforcement of contracts relating to jurisdiction and choice of law. The focus is on English law, EU law and common law measures, but there is also some comparative material built in. The book willbe useful in particular to practising lawyers...

Adrian Briggs is a Fellow at St Edmund Hall and Professor of Private International Law at the University of Oxford. He is also an actively practising barrister at Blackstone Chambers specialising in commercial law, in particular jurisdiction and enforcement of foreign judgments. He has written widely in the field of private internatio...

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Format:HardcoverDimensions:600 pages, 9.21 × 6.14 × 1.38 inPublished:April 17, 2008Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199282307

ISBN - 13:9780199282302

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Table of Contents

1. Introduction and SchemeIntroductionAdvance conclusionsTerms and elementsA snapshot from 2007Scheme2. Consent in private international lawThe general principleThe role of consent in commercial lawConsent or agreement, and the absence of consent or agreementConsent in the application of foreign lawConsent in choice of lawConsent in the recognition of foreign judgmentsConsent and the personal jurisdiction of the courtConsent and the subject-matter jurisdiction of the courtEuropean jurisdiction3. Dispute resolution and severabilityContractual termsThe nature of agreements for the resolution of disputesContractual agreements on jurisdictionSeparate natures, or severable agreementsThe path to the principle of severabilityValidity and severability: jurisdiction agreementsThe obverse of severabilityThe agreement on choice of law as part of the severable agreementThe strength and weakness of agreement as an organising principlei Divergence on the existence of a contractii Divergence on the content of the bargainAssumptions and conclusions4. Clauses, principles, and interpretationThe range and varieties of jurisdiction clauseJurisdiction clauses: rights conferred and duties assumedJurisdiction agreements as exemption clausesThe scope of the duty; the ambit of the clauseService of suit clausesCombined arbitration and jurisdiction agreementsChoice of law clausesOne contract but several agreementsThe role of European law5. Drafting agreementsDrafting by specimenContractual variation of the Brussels RegulationA specimen clause: elaborate versionExplanation of contents: elaborate versionA specimen clause: simple versionDrafting by incorporation from other documentsThe meaning of words and the use of authorityi Subject matter: 'this contract', 'this agreement'ii Prepositions, connections, and the terminology of relationship6. Jurisdiction agreements: primary obligationsJurisdiction-blind enforcementDevelopment of the anti-suit injunctionObjections to enforcement by order of the English courtEquitable maxims as restriction on remedyThe position of strangers to the contractStays of English proceedings brought in breach of contract7. Jurisdiction agreements: Brussels RegulationThe context in which Article 23 is to operateThe structure of Article 23The conclusiveness or inconclusiveness of writingWhat is an agreement for the purposes of Article 23 ?Unilateral or bilateral agreementArticle 23: what writing ? whose writing ?The parties to the 'particular legal relationship'Formal alternatives to writing which satisfy Article 23Article 23 and those who depart from the agreementInjunctions to enforce agreements about jurisdiction and litigationTurner v GrovitHow persuasive ? The burden of proofThe 'particular legal relationship'Clarifying the wording: the United KingdomJurisdiction agreements for the courts of non-Member StatesConclusions8. Jurisdiction agreements: secondary obligationsThe starting points of the common lawUnion Discount v Zoller and five cases which are less straightforwardOther issues arising within the common law analysisi The cause of actionii The assessment of damagesiii Where the nominated court is not in England Judgments from the courts of a Member State9. Foreign JudgmentsCommon law recognitionJudgments from the court designated by a dispute resolution agreementForeign judgments obtained in breach of jurisdiction agreementOvercoming foreign judgments obtained in breach of contractRecognition and enforcement under the RegulationThe decision in De Wolf v CoxRecognition and enforcement at the margin of the RegulationInternational obligations binding courts; personal obligations binding parties10. Agreements on choice of lawContracts: where the existence of the contract is not in disputeContracts: where the existence of the contract is in disputeContracts: the law which governs the consequences of contractual invalidityContracts: conclusions about the nature of choice of law for contractsAgreements of choice of law and claims in tortChoice of law and property rights11. Giving effect to agreements on choice of lawIntroductionThe common law and the proper law of a contractChoice of proper law: common intention or mutual agreement?Governing the contract and governing contractual litigationThe consequence if the law identified for application is not appliedi Breach of a choice of lawii Non-monetary responsesiii Monetary remediesiv Subverting the contract as a tortious wrongv The Rome ConventionImpermissible choices of law: secondary consequencesThe alternative: careful draftingi Promising to payii Adapting the undertaking in damages12. Agreements to resolve disputes by arbitrationPreliminary questions and practical answersWho will adjudicate ? Who decides who will adjudicate ?Another viewTo what do the parties agree when they agree to arbitration ?The jurisdiction of the courts of the seatForeign judgments in breach of arbitration agreement: Brussels Regulationi Non-recognition of judgmentsii Reversal of judgmentsiii Private rights and public dutiesForeign proceedings in breach of agreement to arbitrate: Brussels RegulationThe New York ConventionDamages for breach of the contract to proceed by way of arbitrationThe problem of excessive supervision13. ConclusionsThe relative effect of agreements on the resolution of disputesThe Hague Convention on Exclusive Choice of Court AgreementsReprise: private international law and party autonomy