Academic literature on the topic 'Substantive validity of choice of court agreements'
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Journal articles on the topic "Substantive validity of choice of court agreements"
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Ruiz Martín, Anna María. "Validity of choice of court agreements, abusive terms in air carriage contracts, assignments and compensation, is there room for anyone else? (Comments on CJEU Judgment Delayfix, c-519/19)." CUADERNOS DE DERECHO TRANSNACIONAL 13, no. 2 (September 14, 2021): 882–95. http://dx.doi.org/10.20318/cdt.2021.6304.
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In Delayfix case, the Court of Justice of the European Union (CJEU) has interpreted the formal and substantive validity of a “choice of court agreement” included in an air carriage of passenger’s contract. But, for the first time, the CJEU has openly declared the unfair nature of these choice of court agreements, not only for the passengers, but also for third parties assigned by them. In opposition with former case law on the effects of a choice of court agreement for assignees. In carriage of passengers’ contracts, third parties are usually agencies devoted to the defense of air passenger rights and collection of credits who claim for the compensation rights in accordance with the rights conferred by Regulation 261/2004. From the EU Private International Law approach, the preliminary ruling is of interest, being the Brussels I bis regulation the instrument for clarifying whether this choice of court agreement should be deemed as enforceable or not, regarding the requirements of Article 25 Brussels I bis due to these contracts are not considered as consumer contracts. To the analysis of the merits and substantive law, contrarily than under EU Private International law rules these contracts are considered as Business to consumer (B2C) contracts, and Directive 93/13/CEE and other EU Consumer rules must be applied so as to determine the unfair nature of these clauses in these contracts.
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Koepp, Johannes, and David Turner. "A Massive Fire and a Mass of Confusion: Enka v. Chubb and the Need for a Fresh Approach to the Choice of Law Governing the Arbitration Agreement." Journal of International Arbitration 38, Issue 3 (June 1, 2021): 377–94. http://dx.doi.org/10.54648/joia2021019.
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The recent judgment of the Supreme Court of the United Kingdom in Enka v. Chubb has provided an answer, at least provisionally, to the thorny question of how the proper law of an arbitration agreement is to be determined under English law. The majority of the Supreme Court (in a 3–2 split) held that in the absence of an express or implied choice of law by the parties, the ‘default rule’ should be that the arbitration agreement is presumed to be governed by the law of the arbitral seat, as the law ‘most closely connected’ to the arbitration agreement. Yet the Supreme Court’s reasoning is not wholly satisfying, and the two dissenting judgments present powerful arguments for taking a contrary approach. This article proposes a means to sever this enduring Gordian knot: drawing from the in favorem validitatis principle applied by the Swiss, Dutch and Spanish legal systems in determining the substantive validity of an arbitration agreement, we suggest extending this principle to encompass questions of the scope of an arbitration agreement and arbitrability. Under this approach, instead of focusing on determining the proper law of the arbitration agreement, the courts need only ask themselves two questions: (i) does the claim in question fall within the scope of the arbitration agreement, as interpreted under any of the potentially applicable laws, and (ii) is it arbitrable under any of those laws? (UK) Supreme Court, Enka v Chubb, Arbitration agreement, Proper law, Choice of law, Governing law, In favorem validitatis, Favour principle, Arbitral seat/seat of arbitration, Scope of the arbitration agreement
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Novikova, T. V. "Identification by the Сourt of Choice of Law Agreement Permissibility and Validity (in the Light of the Supreme Court of the Russian Federation Plenum Explanation of 9 July 2019)." Rossijskoe pravosudie 3 (February 21, 2020): 5–13. http://dx.doi.org/10.37399/issn2072-909x.2020.3.5-13.
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Problem statement. Standard of choice of law by the parties to international contractual relations is set by article 1210 of the Russian Federation Civil Code, which nevertheless does not cover issues of choice of law agreement permissibility and validity. Goals and tasks of the research. Goal – analysis of legal foundation for the court to identify choice of law agreement permissibility and validity – in the light of the Supreme Court of the Russian Federation plenum explanation of 09 July 2019. Tasks: review of approaches to identify choice of law agreement validity and criticism towards some of them; substantiation of delimitation made by the Supreme Court of the Russian Federation between issues of choice of law agreement permissibility and validity; substantial analysis of identification by Russian courts of choice of law agreement permissibility. Methods. Methods of theoretical research are tools of formal logic, which include: analysis of the court procedure to approve the choice of applicable law, enabling to distinguish in its frames issues of permissibility and validity of such choice; deduction of basic conflict of laws logic to the court acknowledgement of choice of law agreement permissibility – on the ground of national conflict of laws rule. Methods of empirical study are based on identification and comparison of judicial acts of arbitration and regular courts – in respect of legal ground to identify choice of law agreement permissibility. Results, brief conclusion. Three basic options of legal ground to identify choice of law agreement permissibility and validity have been elaborated by jurisprudence: law of the court (lex fori); law chosen by the agreement of parties (lex voluntatis); law applicable to the substance of relation due to the conflict of laws rule (lex voluntatis). The Supreme Court of the Russian Federation formed a combined approach making delimitation between issues of choice of law agreement permissibility and validity as well as referring the first to lex fori and the second – to lex voluntatis. Identification of choice of law agreement permissibility by Russian courts on the basis of national conflict of laws rule (article 1210 of the Russian Federation Civil Code in combination with the general provision of its article 1186) corresponds in full extent to the settled judicial practice, complies with the basic conflict of laws logic and seems to be effective.
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Choi, Dongdoo. "Choice of Law Rules Applicable For International Arbitration Agreements." Asian International Arbitration Journal 11, Issue 2 (December 1, 2015): 105–15. http://dx.doi.org/10.54648/aiaj2015005.
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The unsettled choice of law issues for preliminary challenges to international arbitration agreements not infrequently spark disputes over the disputes resolution mechanism. This article will examine the efficacy of the traditional choice of law rules widely used in leading jurisdictions covering popular arbitration seats to determine the law for substantive validity of arbitration agreements, i.e., the implied intent test and the closest connection test. Noting these tests fail to produce consistent and predictable results, this study will suggest a practical solution built on a faithful construction of the New York Convention. In addition, the article will briefly discuss about the New York Convention’s form requirements and the choice of law rules applicable to formal validity of arbitration agreements under the UNCITRAL Model Law.
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Ahmed, Mukarrum. "The Legal Regulation and Enforcement of Asymmetric Jurisdiction Agreements in the European Union." European Business Law Review 28, Issue 3 (May 1, 2017): 403–25. http://dx.doi.org/10.54648/eulr2017022.
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This article examines the legal regulation and enforcement of asymmetric choice of court agreements under the Brussels I Regulation (Recast). The two significant and related issues of the effectiveness of asymmetric jurisdiction agreements under Art. 25 of the Recast Regulation and whether proceedings commenced in the primary nonexclusive court identified in the agreement should trigger the application of Art. 31(2) of the Recast Regulation are analyzed. Notwithstanding, the rulings of the French Cour de Cassation in Rothschild and ICH v. Credit Suisse, it will be argued that asymmetric choice of court agreements should in principle be effective under Art. 25 of the Recast Regulation from the perspectives of validity, certainty, form and fairness. The validity and effectiveness of asymmetric jurisdiction agreements in the jurisprudence of the English courts is already well established. There also exists some support for the argument that proceedings initiated in the English courts (as the primary nonexclusive court identified in the clause) may invoke the protective cover of Art. 31(2) of the Recast Regulation where the borrower in an international finance agreement has breached his obligation to sue exclusively in the English courts.
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Steindl, Barbara. "Learned Lawyers Attest: It Is Advantageous To Be Right in (an Austrian) Court." Journal of International Arbitration 27, Issue 4 (August 1, 2010): 427–37. http://dx.doi.org/10.54648/joia2010024.
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This article reviews arbitration-related Austrian Supreme Court judgments rendered between January 2008 and February 2010. Proceedings dealing with claims that marginally refer to arbitration although neither of the parties’ allegations nor the courts’ analysis implicate Austrian or foreign arbitration and enforcement laws or treaties, as well as proceedings dealing with provisions of the Austrian Arbitration Law prior to its 2006 amendment which are not reflected in the current law, were disregarded. This review covers jurisprudence on the issues of (i) estoppel and public policy; (ii) the law applicable to the (substantive) validity of the arbitration agreements and their extension to third-party beneficiaries; (iii) the availability of partial set-aside; (iv) venire contra factum proprium under Article V(1)(a) of the New York Convention; (v) the admissibility of third-party intervention in arbitration; and (vi) the authorization required for an international arbitral institution’s body to certify arbitral awards.
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He, Qisheng. "Chronology of Practice: Chinese Practice in Private International Law in 2018." Chinese Journal of International Law 18, no. 4 (December 1, 2019): 933–80. http://dx.doi.org/10.1093/chinesejil/jmz035.
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Abstract This paper contains materials reflecting the practice of Chinese practice in private international law in 2018. First, the statistics of the foreign-related civil or commercial cases decided by Chinese courts is extracted from the Report on the Work of the Supreme People’s Court (SPC) in 2018. Second, the SPC judicial interpretation concerning the enforcement of arbitral awards is translated, and the interpretation reflects a pro-arbitration tendency in Chinese courts. Third, six cases, on the validity of a choice of court clause, the conflict of laws issues regarding personal injury on the high seas, visitation rights and uncontested divorces, as well as the recognition of foreign judgments, are noted. Fourth, the paper introduces a case embodying the “one-stop” international commercial dispute resolution mechanism in Chinese courts. Finally, the paper also covers six representative decisions regarding the parties’ status, the presumption of the parties’ intention as to choice of law, and the validity of arbitration agreements.
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SUK, Kwang Hyun. "Various Issues of the International Choice of Court Agreement under the Amended Act on Private International Law of 2022." Kyung Hee Law Journal 57, no. 2 (June 30, 2022): 3–46. http://dx.doi.org/10.15539/khlj.57.2.1.
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The Act on Private International Law (APIL), which came into effect in July 2001, provided for general principles on international jurisdiction in its Article 2, and for rules of international jurisdiction protective of socio-economically weaker parties, such as consumers and employees, in its Articles 27 and 28. Although the Supreme Court applied Article 2 of the APIL, it disregarded paragraph 2 and applied only paragraph 1 and drew the conclusion it desired through a ‘case-by-case analysis’, thereby undermining legal stability. To improve this situation, the Ministry of Justice promoted the revision of the APIL, and finally, on January 4, 2022, the Amended APIL (the “Amended APIL”) containing detailed rules of international jurisdiction was promulgated. Among various issues regarding the rules of international jurisdiction included in the Amended APIL, those surrounding the jurisdiction agreement (Article 8) are dealt with in the present article, focusing on the changes brought by the Amended APIL. The Amended APIL introduced Article 8 reflecting the contents of the Choice of Court Convention (especially Article 6) of the Hague Conference on Private International Law (the “Convention”), which came into effect on October 10, 2015. Article 8 of the Amended APIL sets out the admissibility requirements (paragraph 1), formal validity (paragraph 2), presumption of exclusiveness (paragraph 3), independence of jurisdiction clause (paragraph 4), and the effect of an exclusive jurisdiction agreement in favor of foreign courts (paragraph 5), and unlike other articles, it governs not only cases where Korea has international jurisdiction but also cases where a foreign court has jurisdiction (however, paragraph 5 applies only to agreements on exclusive jurisdiction in favor of foreign courts). In particular, the law governing the validity of the jurisdiction agreement is specified as “the law of the country having international jurisdiction according to the jurisdiction agreement (including the choice of law rules)”, which is also a reflection of the position taken by the Convention. The order of discussion is as follows: first, the importance of international jurisdiction agreements and an overview of jurisdiction conferred by agreement (Chapter II), Second, types of international jurisdiction agreements (Chapter III), Third, law applicable to jurisdiction agreements (Chapter IV), Fourth, admissibility requirements of the jurisdiction agreement (Chapter V), Fifth, formal validity of jurisdiction agreement (Chapter VI), Sixth, effect of jurisdiction agreement (Chapter VII), Seventh, violation of exclusive jurisdiction agreement and an anti-suit injunction (Chapter VIII), and Eighth, special issues on the international jurisdiction agreement based on contract terms and conditions in B2B transactions (Chapter IX). Since the Amended APIL has partly adopted the position of the Convention, Korea needs to consider whether to accede to the Convention. Particular attention will be needed to identify ways in which jurisdiction agreements excessively excluding Korea’s international jurisdiction can be controlled properly. In addition, following the Google case, which recently attracted the attention of Korean lawyers and where the choice of court was effected by a jurisdiction clause in the contract terms and conditions, it is necessary to further review the issues surrounding a jurisdiction agreement based on the contract terms and conditions, and in the same vein consider amending the General Terms and Conditions Act of Korea.
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Weisberg, Robert. "The Impropriety of Plea Agreements: An “Anthropological” View." Law & Social Inquiry 19, no. 01 (1994): 145–48. http://dx.doi.org/10.1111/j.1747-4469.1994.tb00394.x.
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David Lynch nicely captures what John Langbein has denounced as the “torture” of plea bargaining. Langbein's wickedly suggestive essay traced modem criminal trial practice back to medieval criminal systems in which the body of the defendant became the victim in a social sacrifice. The modern analog, for Langbein, is that the Warren Court due process revolution “guaranteed” defendants a wide variety of procedural rights that society simply cannot afford (or, Lynch would say, refuses to afford) them. The result is the outrageously generous offer the state makes to the defendants. Put somewhat differently, this sort of “incentive system” plays mind games with the much-touted principle of autonomy built into the due process/waiver model. If trials establish an automatic “risk-preferring” principle on defendants, plea bargaining tempts them with a risk-averse alternative they might well wish they had never been offered. It is both more choice and less freedom. Plea bargaining forces a “normatively thinking” defendant into the world described by Judge Easterbrook in a parallel wickedly suggestive essay, in which he portrays bargaining as the cost system for rendering into usable averages all the predictive doubts we may have about the defendant's chances of winning on both substantive and procedural grounds.
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Bogdanova, Natalya A. "ESTABLISHING THE VALIDITY OF THE INTERNATIONAL JURISDICTION AGREEMENT ON THE BASIS OF THE LEX CAUSAE: ADVANTAGES AND DISADVANTAGES." Vestnik Tomskogo gosudarstvennogo universiteta. Pravo, no. 37 (2020): 131–41. http://dx.doi.org/10.17223/22253513/37/11.
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The Institute of International Jurisdiction Agreement has recently been incorporated into domestic law through the adoption of the Russian Code of Arbitration Procedure on 24 July 2002 and the Russian Code of Civil Procedure on 14 November 2002. Previously, the domes-tic doctrine did not give sufficient attention to this instrument of contractual regulation of procedural relations and it was considered only to a limited extent. At present, including the adoption of the Concept of the Unified Code of Civil Procedure of the Russian Federation, which was developed for the purpose of comprehensive reform of procedural legislation, interest in international jurisdiction is growing significantly. Subordi-nation of a dispute to the jurisdiction of the court of the state whose law regulates the legal relationship between the parties from which the dispute arose significantly simplifies its reso-lution, as there is no need to establish the content of foreign law. Agreements on international jurisdiction also contribute to legal certainty between the parties. An agreement on international jurisdiction is of a complex legal nature as it has both procedural and substantive legal features. This type of agreement is at the intersection of private international law and international civil procedure law on the one hand, and civil and proce-dural law on the other. The study of the law applicable to agreements on international jurisdiction involves resolving a huge number of conflicts that arise when establishing the applicable national legal order to an aspect of an agreement. In the article, the author investigates the advantages and disadvantages of establishing the validity of an international jurisdiction agreement on the basis of the lex causae, i.e. the law applicable to the main contract with a foreign element for dispute settlement from which the parties conclude a propulsion agreement. The collision rule of the lex fori prorogati, set out in the 2005 Hague Convention and Regulation No 1215/2012 for its uniform application to the substantive validity of the agreement, does not contribute to international uniformity of decisions, since the law of the forum country referred to in the agreement as competent means not only substantive but also collision rules. As a result, the question of the applicable law to substantive validity is settled by the courts of various states on their own, and in most European law and order practice shows the application of the lex causae rather than the lex fori. The author concludes that accentuating the statute of the international jurisdiction agree-ment to the statute of the main treaty in order to resolve the question of the substantive validity of the agreement, despite the existence of certain shortcomings, is in the best interest of indi-vidual conflict interests, conflict of interests in turnover and law and order.
Dissertations / Theses on the topic "Substantive validity of choice of court agreements"
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BENINI, CATERINA. "La legge applicabile agli accordi di scelta del foro nel Regolamento Bruxelles I bis." Doctoral thesis, Università Cattolica del Sacro Cuore, 2022. http://hdl.handle.net/10280/117008.
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La presente tesi indaga il regime sostanziale degli accordi di scelta del foro nello spazio giudiziario europeo. Data l’importanza di tali accordi per la pianificazione del contenzioso internazionale, è essenziale che il regime applicabile agli stessi sia certo e prevedibile. In questo senso va la regola di conflitto di cui all’art. 25 regolamento Bruxelles I bis, la quale stabilisce che la validità sostanziale di un accordo di scelta del foro va valutata ai sensi del diritto del giudice designato, norme di conflitto incluse. Tale regola favorisce l’armonia internazionale delle soluzioni, in quanto la validità sostanziale dell’accordo viene ad essere regolata allo stesso modo da parte di qualunque giudice chiamato a pronunciarvisi, così ponendo rimedio all’assenza di regole di conflitto uniformi applicabili agli accordi di scelta del foro e di regole europee di diritto contrattuale. La tesi si propone di ricostruire l’ambito applicativo della regola in questione. Se interpretata alla luce degli obiettivi per cui è stata adottata, essa deve intendersi come riferita a tutte le condizioni da cui dipende la validità sostanziale di un accordo di scelta del foro: capacità delle parti di concludere l’accordo; attitudine del rappresentante a vincolare il rappresentato nei confronti di terzi; esistenza ed integrità del consenso delle parti; formazione dell’accordo; permanenza degli effetti dell’accordo e loro imputabilità soggettiva a seguito di trasferimento dell’accordo stesso o di successione nelle posizioni giuridiche da esso previste.This thesis investigates the substantive regime of choice of court agreements in the European judicial space. Given the importance of such agreements for the management of international disputes, it is of crucial importance that their legal regime is certain and predictable. The conflict rule provided for under Article 25 Brussels I bis Regulation goes in this direction. This rule provides that the substantive validity of a choice of court agreement is to be assessed in accordance with the law of the designated court, including the conflict of law rules of this legal order. This rule promotes international harmony of solutions, since the substantive validity of the agreement is regulated in the same way by any court called to rule on it, thus remedying the absence of uniform conflict rules applicable to choice of court agreements and of European rules of contract law. This thesis seeks to reconstruct the scope of application of the rule in question. When interpreted in the light of the objectives for which it has been adopted, the rule on the substantive validity is to be understood as referring to all conditions from which the substantive validity of a choice of court agreement depends: capacity of the parties to conclude the agreement; ability of the representative to bind the represented party vis-à-vis third parties; existence and integrity of the parties' consent; formation of the agreement; permanence of the effects of the agreement and their subjective effectiveness following the transfer of the agreement or succession in the legal positions provided for thereunder.
Books on the topic "Substantive validity of choice of court agreements"
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Trevor C, Hartley. Part II Jurisdiction, 13 Choice-of-Court Agreements. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198729006.003.0013.
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This chapter considers choice-of-court agreements under Brussels 2012, Lugano 2007, and Hague. The issue is considered based on the assumption that the courts of only one country are involved. Several provisions in all three instruments are relevant. In the case of Brussels 2012, the most important for present purposes is Article 25; in the case of Lugano 2007, it is Article 23; in the case of Hague, the whole Convention could be regarded as relevant, since all of it is concerned with choice-of-court agreements. The discussions cover the nature of choice-of-court agreements, relevant provisions, location of the designated court, the need for an international element, asymmetric choice-of-court agreements, indirect designation, formal validity and consent, substantive validity, severability, disputes covered, parties covered, the obligation to hear the case, and the obligation to decline jurisdiction.
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Renato, Nazzini. Part III International Arbitration Agreements: Issues and Perspectives, 9 The Law Governing the Arbitration Agreement: A Transnational Solution? Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198783206.003.0010.
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This chapter examines the law applicable to the arbitration agreement when there is no express choice of such a law. It does not aim to set out a test, or a set of tests, of universal validity or application. Rather, its objective is to review the current state of play and sketch out a framework for the development of a possible ‘transnational’ solution to the problem. The chapter first explains why a separate enquiry into the law governing the arbitration agreement is necessary and what the implications of such a separate enquiry are. Second, it reviews three possible approaches to determining the law governing the arbitration agreement: the application of the law chosen by the parties to govern their substantive rights and obligations; the application of the law of the seat of the arbitration; and the application of ‘transnational’ rules.
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Georg, von Segesser. IV Trust Arbitration as a Matter of International Law, 19 Arbitrating Trust Disputes: Effect of the Hague Convention on the Law Applicable to Trusts and on Their Recognition. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198759829.003.0019.
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This chapter examines the effect of the Hague Convention on the Law Applicable to Trusts and on their Recognition (Hague Trust Convention) on the law applicable to the arbitration of trust disputes. It also considers the extent to which arbitrators can apply the conflict of laws rules of the convention in cases where the parties have not agreed that these rules should govern the issues in dispute. The chapter is organized as follows. Section II addresses the selection of the applicable substantive law by arbitral tribunals in cases where the parties have not agreed on the applicable law. Sections III and IV cover international conventions and, in particular the Hague Trust Convention, as sources for the selection of the applicable law. Section V deals with the validity and effect of arbitration agreements while Section VI considers the effects of a choice of-law-clause and the binding effect of such a clause for the arbitral proceedings. Section VII addresses the effect of specific conflict of laws rules of the Hague Trust Convention on the law applicable to the merits in international trust arbitration disputes.
Book chapters on the topic "Substantive validity of choice of court agreements"
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Ahmed, Mukarrum. "The validity of choice of court agreements in international commercial contracts under the Hague Choice of Court Convention and the Brussels Ia Regulation." In The Future of the Law of Contract, 217–36. Abingdon, Oxon ; New York, NY : Routledge, 2020. | Series: Markets and the law: Informa Law from Routledge, 2020. http://dx.doi.org/10.4324/9780429056550-11.
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David P, Stewart, and Bowker David W. "Four Choice of Law." In Ristau's International Judicial Assistance. Oxford University Press, 2021. http://dx.doi.org/10.1093/law/9780199812714.003.0004.
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Parties to international transactions may choose the law they want to govern certain aspects of their deal, including both the dispute resolution clause and the substantive provisions of their contract. The parties’ choice of law is a consequential but often particularly difficult aspect of cross-border transactions, particularly because the rules of enforceability of such clauses differ from one jurisdiction to another, and thus the parties’ choice may or may not be honored by a domestic court or other tribunal ultimately faced with the question. Moreover, no single agreed international approach or practice exists, much less any explicit rule or agreement, to guide a determination by a domestic court faced with deciding the validity of the parties’ choice or, in the absence of such a choice, under its “conflicts of law” rules. This chapter reviews differing domestic approaches in this area of “private international law,” the existing regional rules (e.g., within the EU and the Inter-American system), and the various emerging “soft law” instruments on “party autonomy.” We describe the U.S. rules on choice of law and conflict of laws in some detail because they are both complicated and often unfamiliar to foreign counsel.
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José Antonio, Fichtner, Monteiro André Luís, and Levy Marcela. "Part 2 Specific Issues of Arbitration in Brazil, 16 Commercial Contracts." In International Arbitration: Law and Practice in Brazil. Oxford University Press, 2020. http://dx.doi.org/10.1093/law/9780198840114.003.0016.
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This chapter highlights arbitration involving commercial contracts in Brazil. Commercial contracts are contracts signed between two entrepreneurs who are running commercial enterprises. Classic examples of commercial contracts are construction contracts, insurance contracts, shipping contracts, loan agreements between companies and banks, franchise agreements, software license agreements, and contracts for international sales of goods. Brazilian courts understand that, in general, there is no room for judicial intervention in commercial contracts, which gives the parties broad autonomy to negotiate their contractual provisions. The chapter then issues related to arbitration clauses included in commercial contracts: formal requirements, choice of law, and arbitrability. It also considers specific substantial aspects of commercial contracts: the impact of good faith on the performance of the contracts; the validity of limitation of liability clauses; the validity of liquidated damages clauses; and remedies for breach of contracts.