Articles de revues sur le sujet « Substantive validity of choice of court agreements »

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

This study is divided into two parts. The first part analyzes the rationale for choice of court agreements, the roles they play in international contracts, and the difficulties arising when recognizing them in agreements between parties with unequal bargaining power, specifically in international consumer contracts. The second part analyses the national rules of international jurisdiction applicable to these contracts. Bearing this in mind, first, the current state of the discussion about their validity in Chile is explained; then the effect in this discussion of applying the provisions of Law No. 19.496 - on consumer rights protection (LPDC by its Spanish acronym), is studied. The international interpretation of the rules of jurisdiction set forth by this law, and the control it provides over abusive terms in consumer contracts are studied as possible solutions to stablish the validity of these contracts. The foregoing, in order to seek a solution that harmonizes, both, the purposes of international consumer protection and to recognize the international nature of their consumer relationship, which allows to consider these contracts as valid if some specific requirements are met.

The article presents the results of a pilot study developed by the authors of the projective test “Congruity and Advantages”. The research aims to study the main psychometric attributes of the test. The selection included 68 subjects of both genders at the age over 18. According to the study results, from the point of view of substantive validity, determined by the Delphic method, the “Congruity and Advantages” Test allows assessing the severity of two characteristics of the subjects: 1) subject's possible preferences of behavior aimed at acquiring advantages, 2) subject's preference of behavior aimed at matching one's choice with the interests of other people and/or circumstances. Criterion validity of the test is defined as sufficiently high. On an advantage scale R Spearman = 0,77 (at р<0,0001). On a scale of congruity of their behavior with others Spearman R =0,68 (at р<0,0001). Retest reliability after the study by the methods of rank correlation indicated R Spearman = 0,83 (at р<0,005). In addition, the monitoring results of the parties' tendency to violate agreements already reached reveal a significant correlation between the indicators of the “Congruity and Advantages” Test and the number of violations of agreements reached - Spearman R = 0,69 (at р=0,0001). Thus, the “Congruity and Advantages” Test can be practical in mediation as both to predict the tendency of the parties to harmonize their actions with others or to prefer their advantages, and to predict the probability of preserving agreements already reached.

The purpose of this study is to find out how the legal review of the sale and purchase agreement through e-commerce and to find out the time and validity of the agreement in the electronic sale and purchase agreement. The data collection method used is primary legal materials, namely laws and court decisions. Secondary legal materials are various literatures, expert opinions, legal dictionaries. Non-legal materials such as the Big Indonesian Dictionary and economic books. The results of the research conducted that the validity of online buying and selling agreements by parties with different legal systems, remains valid. This can be seen even though the different legal systems of the agreement occur because of a prior agreement between the parties, where when they want to enter into an e-commerce contract the parties can determine the choice of law and the choice of which forum is the basis for implementing e-commerce as well as being a second agreement. parties in the event of a dispute in the future. If a choice of law is not made, then to determine the applicable law, the principle/theory (the most characteristic) in Civil Law must be used.

A problem statement. Human rights law, as a branch of public international law, to date, is mainly codified and consists mainly of treaty rules contained in universal and regional conventions. At the same time, in most cases, the parties to these agreements make reservations of both a substantive and procedural nature that apply to all generations of human rights. The question arises as to the legitimacy of the reservations declared by states to international acts on human rights and freedoms. Аnalysis of research and publications. Many international lawyers deal with the issue of reservations to human rights treaties and their validity. Thus, the works of E.S. Alisievich, are devoted to this issue, I.I. Lukashuk, V.G. Butkevich, V.L. Tolstoy, M.V. Buromensky and others. However, there are a number of problems with the legal regime of reservations to human rights treaties. The main thesis that reveals their essence is that there is no mechanism for effective control over the legitimacy of such reservations. The main text. The article considers the concept of reservations to international treaties, examines the problem of issuing reservations to international human rights treaties. The application of the institution of reservations is studied on the example of certain international treaties in the field of human rights, such as: the European Convention on Human Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the African Charter on Human and Peoples’ Rights. The case law of the European Court of Human Rights on the application of reservations to the European Convention on Human Rights is studied. Conclusions. Today, the sovereign right of every state to stipulate international treaties is firmly established in international law, but there is no clear legal regulation of this institution that would prevent abuses by states in this area. We see the need to further study the institution of reservations to human rights treaties, its development and the development of general principles, procedures, and control over their legitimacy.

The article is devoted to topical and at the same time debatable topic of using forensic expert conclusion based on forensic examination results of electric shock accidents. Evaluation and verification of forensic expert conclusion, as one of the sources of evidence obtained on the basis of scientific knowledge is a prerequisite for impartiality, objectivity and comprehensiveness of the investigation in criminal proceedings and court proceedings. Conclusion assessment and verification consists of the solution of two general groups of issues: 1) compliance with procedural rules and requirements while appointment, forensic examination and conclusion submission: procedural assessment; 2) correctness, scientific validity and reliability of research and the conclusion is a meaningful assessment. Difficulty of correctly assessing and verifying reliability and scientific validity of forensic expert conclusion by investigative bodies or the court is due to the fact that conclusion is an expert’s deduction made on the basis of specific expertise in a particular field of science and technology. Certainly, investigator or the court does not have such knowledge. Sometimes they cannot objectively assess and verify the conclusion content for correct choice of methodology, methods used and methods of problem solving. It is emphasized that solution of such issue by investigation or the court is especially difficult in default of proven methods, or when applying new types of examinations. The article presents some aspects of verification of the facts established in the conclusion, their consistency with other circumstances and evidence in the case. Emphasis is placed on the fact that it is often difficult to verify the facts established in while investigation of electric shock accidents, consistency of these facts with other evidence in the case, if forensic examination establishes such facts, or when examination establishes certain crime elements. The ways of solving some complex aspects of the substantive assessment of forensic expert conclusion by investigation or the court are identified; it is proposed to make certain changes in procedural legislation regarding the independent review of forensic expert conclusion.

As a general rule, an express written agreement on applicable law is the most successful in the event of a dispute. However, the wording of the agreement, particularly when terms such as «law» and «legislation» are used, can cause significant difficulties in the law enforcement process. The practice of Russian courts and the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation has established the position that the parties' choice of «Russian Federation law» means, first and foremost, their choice of international treaties of the Russian Federation which are an integral part of its legal system and, as far as they are concerned, of Russian regulations. Difficulties in the practice of the International Commercial Arbitration Court are caused by the interpretation of the phrase «Russian Federation law» used in applicable law agreements. In some decisions it is understood as covering only Russian regulatory acts, in others it is understood as implying also international agreements of the Russian Federation. This problem is most acute in the application of the Convention on Contracts for the International Sale of Goods, as the Convention allows the parties to exclude its application. This problem is compounded by the fact that the legislator himself uses various terms in formulating conflict of laws rules. For example, as part of the conflict of laws regulation of contractual legal relations with a foreign element, the Agreement of the countries of the Union of Independent States on the procedure for settling disputes related to business activities uses the term «legislation» and the Civil Code of the Russian Federation uses the term «law». In this regard, we support Oleg Malkin's position on the expediency of using the term «law» both in national conflict of laws rules and in international treaties concluded by the Russian Federation. We believe that if the parties choose the «legislation of the Russian Federation», the ap-plication of international treaties of the Russian Federation will only be justified if the parties themselves confirm that they did not intend to exclude their validity. In the absence of a common position of the parties on this issue, the court and the arbitral tribunal will be forced to interpret the said phrase in the light of its literal meaning and in the light of Art. 3 and 7 of the Civil Code of the Russian Federation as covering only domestic legal acts and excluding (if such exclusion is permissible) international agreements. While acknowledging that in a number of cases the parties to applicable law agreements do not see any difference between the terms «law» and «legislation», we will point out the following. In the absence of an agreed position on the contrary, an express agreement must be interpreted only in accordance with its literal meaning, and a party that does not understand such meaning will suffer the adverse consequences of its misunderstanding. In this regard, the parties to international private law relations should once again be reminded of the recommendation to formulate the texts of applicable law agreements as precisely and unambiguously as possible.

India is on its way to being recognised as one of the arbitration-friendly nations of the world. An unresolved question of law, acting as a hurdle to this is the enforceability of option clauses. Since arbitration agreements are the foundation of the rights of the parties to an agreement, it is to be considered whether unilateral option clauses are valid because the parties have agreed to the same. This paper analyses the consequences of only one party to a contract having the right to approach a broader choice of forum to hear its grievances. Although unilateral option clauses are commonly used in commercial transactions, they pose various issues. This paper examines the different facets of the validity and operation of such clauses in arbitration. For this, the paper relies on the developments in Indian as well as international arbitration laws-specifically, the recent judgement of the Singapore Court of Appeals is examined. The issues with respect to enforceability of such clauses make it necessary to weigh the benefits of having them, as against their complex operability.

Power to Conclude an Arbitration Agreement on Behalf of Another PersonSummaryThe legal character of an arbitration agreement is disputable in the Polish doctrine. However, it is undisputable that such an agreement may be concluded by an agent. I mean here a power of attorney of the substantive law, and not the power to represent in the court proceedings.A principal may expressly authorize an agent to conclude a particular arbitration agreement (a specific power of attorney) or to conclude all arbitration agreements (a generic power of attorney).A question, however, arises, whether an agent authorized to enter into a specific civil or commercial law contract or contracts of specific kind who was not expressly authorized by a principal to conclude an arbitration agreement may conclude such agreement in relation to the disputes which may result from these contracts. This question should be answered positively.An agent who was given only a general authorization to act on behalf of the principal, cannot in principle conclude an arbitration agreement, unless the dispute concerns the sphere in which an agent has a power to act. This sphere is confined to acts within a regular management.One should look for a law applicable to the power of attorney to conclude an arbitration agreement according to the method accepted generally in private international law for authorization, and not according to the rule applied in relation to a power to represent in the court proceedings.The Polish 1965 Private International Law Act does not determine the law applicable to the authorization. This gap should be filled using the following solution:a) the choice of law made by a principal (or by a principal and an agent) is effective against the third party , if this party knew about the choice or could and ought to have known about it,b ) in case of the lack of choice, the law of the country in which an agent permanently conducts his professional activity related to the authorization should be applied (the law of agent’s seat), if the third party with whom an agent concluded an agreement knew the agent’s seat or could, with due diligence, identify it,c ) in case of the lack of choice and when an agent has no permanent seat, one should apply the law where an agent acts.

The institution of marriage is succumbed to yield many causes giving birth to legal action arising from this single relation called ‘marriage’. From time immemorial people have been interacting across the border and hence there have been marriages between individuals crossing the territorial boundary of country. Every country has its own legal system usually different from the legal system based on distinguish cultural, religious or political identity. In this situation if a dispute out of marriage will arise wherein parties are from different legal systems, the court will have to decide about according to which particular law and legal system such conflicting situation relating to marriage would be adjudicated. Private international law is a path to guide judicial courts encountering such situations and this paper is all about how judges have to exercise jurisdiction and private international law and further according to which set of law/s such matrimonial disputes/causes should be addressed. Person having different domicile, residence or nationality may enter into matrimonial relationship. At the time of marriage no one speculate any matrimonial dispute but emotion, relation and compatibility between emotion and relation is quite different things. Therefore, there is always risk/chance of fractions in every marriage. If parties to marriage are from the same legal system, then their dispute will be adjudicated according to their local substantive and procedural laws of their land. But, if such parties to marriage belong from different legal systems and further if they have married away from their own place viz. a third country, then the jurisdiction and the law to be applied in matrimonial disputes would be looked from the lenses of the private international law. Thereafter these relations can also culminate into matrimonial disputes which take its legal effect through various matrimonial causes. This research paper mainly aims to analyse the various matrimonial causes present in a matrimonial dispute involving a foreign element which shall come under private international law and various choices oflaw rules, with special emphasis on nullity of marriage. This paper shall also briefly discuss the concept and validity of marriage. This paper shall analyse the concept of matrimonial causes in conflict of law through the Indian perspective. As India is a common law country which is of a shared British heritage and developed in England so the various concepts as aforementioned shall also include comparison with the English law. This paper shall conclude with authors’ observations and suggestions.

Resumen: Las controversias de carácter jurisdiccional son muy comunes en litigios derivados de la contratación marítima internacional y, en este contexto, la elección del foro es una cuestión capital. Tanto las cláusulas atributivas de jurisdicción y como las cláusulas de arbitraje son dos mecanismos diferentes que ayudan a garantizar la imparcialidad y la previsibilidad en la resolución de las controver­sias internacionales. A pesar de sus beneficios, en el contexto de los documentos de transporte marítimo internacional estas cláusulas pueden ser inconvenientes para las partes que se ven obligadas a litigar ante foros lejanos. La mayoría de los conocimientos de embarque contienen atributivas de jurisdicción que establecen que las partes deben acudir a determinado tribunal para resolver cualquier controversia que surja en relación con el contrato de transporte internacional. Sin embargo, cuando se emite un co-nocimiento de embarque bajo una cláusula de fletamento que incorpore expresamente la cláusula de arbitraje, las partes en el contrato de transporte incluidas en el conocimiento de embarque, pueden verse obligados a acudir al arbitraje. El art. 468 Ley de Navegación Marítima regula la validez formal de aquellas cláusulas de jurisdicción y arbitraje que prevean la sumisión de las partes a una jurisdicción extranjera o a un arbitraje en el extranjero e impone la negociación individual y separada de ambas cláusulas como requisito de validez.Palabras clave: Derecho internacional privado, cláusulas atributivas de jurisdicción, cláusulas de arbitraje, arbitraje marítimo, Ley de Navegación marítima de 2014.Abstract: Disputes about jurisdiction are very common in litigation arising from international maritime contracting. In this context the choice of forum is an important matter. Jurisdiction and ar­bitration clauses are two different mechanisms that help to ensure impartiality and predictability in international dispute resolution. Despite their benefits, in the context of international maritime transport documents these clauses can be inconvenient for parties that are forced to litigate many times before distant fora. Most bills of lading contain jurisdiction clauses providing that parties are to resolve any disputes arising in connection with the contract of carriage contained in the bill through litigation in the courts. Where a bill of lading is issued under a charter party, however, and where it expressly incor­porates the charter party’s arbitration clause into its terms, the parties to the contract of carriage con­tained in the bill of lading, including any transferees of the bill, may be obliged to refer their disputes to arbitration. Article 468 of the new Maritime Navigation Act regulates the formal validity of choice of court agreements and arbitration agreements establishing the submission to a foreign court or to an arbitration located abroad.Keywords: International Private Law, jurisdiction and arbitration clauses, maritime arbitration, Spa­nish Maritime Navigation Act 2014

Two tenets are central to the Common Law rules for enforcement and recognition of foreign judgments. The first is that, subject to public policy, the enforcing court does not review the substance of the decision; in other words, mistake is no defence. The second is that, apart from ensuring that the judgment was not obtained by fraud or through a breach of the requirements of natural justice, the prime consideration for enforcement is whether the foreign court was competent to issue the judgment; in other words, whether it had jurisdiction.These two tenets are eminently reasonable. A foreign judgment is after all both a judgment—like a local judgment, and foreign—like a right acquired under a foreign law. The validity of local judgments and of foreign unadjudicated rights depends on jurisdiction: local judgments depend on adjudicatory jurisdiction (often defined in the rules of service); foreign rights—on legislative or prescriptive jurisdiction (the jurisdiction of a system to regulate the situation substantively, as defined in choice-of-law rules). It thus seems appropriate to require jurisdiction of foreign judgments too. Local judgments, once final, are never subject to review, and can be attacked on the grounds that they were obtained by fraud only exceptionally. Rights acquired under a foreign law cannot be refused enforcement because of their substance and are subject only to the public policy exception. It thus seems appropriate to immunise foreign judgments from substantive review too. Foreign judgments—adjudicated rights—are of course different from foreign unadjudicated rights in that they are the product of a process. So, as in the case of local judgments, it should nonetheless be possible, in limited circumstances, to examine whether the process was tainted by fraud. So too, they differ from local judgments in that the process from which they emerge is not a local one; it cannot be relied upon in the same way as locally controlled and institutionalised procedures. It thus seems reasonable that, while prevented from reviewing the substance of a foreign decision, the court should be permitted to require of it a minimal level of procedural justice.

This paper discusses the application of the EU directive as a source of European private international law with an emphasis on the post-Lisbon period in private international law of the member states. After presenting the main features of a directive in private international law, such as the legal basis for those “measures” in secondary legislation, types of directive, their structure, purpose and the effects of a directive, the author points out the special importance of the directive expressed in the Ingmar and Unamar cases of the Court of Justice of the European Union. In both cases the legal framework was Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents. In the Ingmar case of 2000, although lacking a (unilateral) conflict of law rule, the Court gave, by interpretation, the position of an unwritten (or hidden) conflict of law rule to a substantive law provision of the Directive. At the same time the Court determined that the provisions of Articles 17 to 19 are to be regarded as mandatory rules for the purposes of private international law. For the former EC legal order it was essential that a principal established in a non-member country (USA), whose commercial agent acts within the EC, cannot evade those provisions by freely choosing un-harmonized applicable law. In 2013 Court of Justice of the European Union was again asked to deal with Council Directive 86/653/EEC of 18 December 1986 but in the new Unamar case with parties from Bulgaria (principal) and Belgium (commercial agent). Again, the Court confirmed the mandatory character of Articles 17 and 18 of the Directive and applied also Art. 7(2) of the Rome Convention of 1980. In his ruling it took into consideration the provisions of Art. 9(1) of the Rome I Regulation in which there is a definition of overriding mandatory provisions. Taking into account the terms of the mandatory provisions, but this time also consistent with the wording of Article 9(1) of the Rome I Regulation of 2008, the Court concluded that the law chosen by the parties to a commercial agency contract may be rejected by the court of another Member State before which the case has been brought in favor of the law of the forum, owing to the mandatory nature in the legal order of that Member State, only if the court of the forum state held it to be crucial to grant the commercial agent protection, going beyond that provided for by the directive, thus taking account of the nature of such mandatory provisions. From June 1988 to today (2021) the EEC, the EC and the EU adopted a considerable number of directives as measures for the approximation of national law dealing mostly with consumer, but also employment and insurance issues, setting forth conflict rules. These sector-specific rules (or special conflict rules for certain (consumer) contracts) from the second-generation directives based on unilateral conflict rules prevail over the conflict rules of the Rome Convention of 1980 (Art. 20) and the Rome I Regulation of 2008 (Art. 23) in relation to particular matters, lay down conflict-of-law rules relating to contractual obligations. This situation creates a “labyrinth” of legal sources dealing with conflict-of-law rules on the national, (ex international) and on the European level. The described fragmentation of a situation where conflict-of-law rules are depressed among several instruments and where there are differences between those rules, contrary to Recital 40(1)-1) Rome I Regulation, has not been avoided. But at the same time the Rome I Regulation did not exclude the possibility of including conflict-of- rules with regard to particular matters (Recital 40(1-2) Rome I Regulation). At the end of this paper the author answered one additional question: How to solve the problem of the lack of coordination between the Rome I Regulation of 2008 and other provisions of EU law, including national laws implementing those acts? The first step may be to give a narrow interpretation of Art. 23 of the Rome I Regulation and to give precedence only to special EU conflict-of-law rules in relation to a particular matter. Stricto sensu it means, all provisions in the consumer directives which provide that, if a contract has a direct link to the territory of one or more Member States, EU law will apply, even if the parties have chosen the law of a third country, should not (always) be regarded as choice of law rules. Such a consideration has the potential to exclude the application of Art. 23 of the Rome I Regulation and rather apply Article 3(4) or 9(2) of Rome I. An example of such “conflict-of-law rule” is Article 22(4) of Consumer Credit Directive 2008/48 EC of 23 April 2008 on credit agreements for consumers (OJ EU L 133/66). The second step is to reopen the lost political battle from 2008 of the European Parliament for a general precedence of all EU internal market law. Thirteen years after Rome I was adopted we have some additional arguments in favor of applying the general principle of supremacy in EU law without breaching “the proper functioning of the internal market” (Recital 40(2) of the Rome I Regulation). The first argument is general, known as the process of communitarization. Its result is not just Rome I (without Article 23) but also Directive 2011/83/ EU of 25 October 2011 on consumer rights, which is a new legal act in the post-Lisbon period of the EUPIL and among consumer directives should be seen as lex posterior. It is not for the first time that in such kind of Directive there is no unilateral conflict rule with the aim to protect all EU values by applying EU law. But the relevant provision lays down that the consumer should not be deprived of the protection granted by that Directive, and that, where the law applicable to the contract is that of a third country, Regulation Rome I should apply in order to determine whether the consumer retains the protection granted by that Directive (Recital 58 of the Directive on consumer rights). Taking into consideration all above mentioned arguments, the author concludes: in the third decade of the 21st century the post-Lisbon legal practice regarding special EU conflict-of-law rules relating to particular matters contained in EU Directives on consumer protection should no longer prevail. The application of the Directives with or without a unilateral conflict rule in a situation with an international element should instead be safeguarded through the application of the provisions of Articles 3(4) and Art. 6(2) for consumer protection, and Article 9(2) of the Rome I Regulation of 2008 in order to determine whether the consumer retains the protection granted by that Directive.