Archive for the ‘Hague Choice of Court Convention’ Category

Saumier and Bagg on “Forum Selection Clauses Before Canadian Courts”

May 9, 2012

Genevieve Saumier (McGill University – Faculty of Law) and Jeffrey Bagg (Student-at-Law, McGill University-Faculty of Law) have posted “Forum Selection Clauses Before Canadian Courts”. Here is the abstract:

Forum selection clauses are treated differently across Canada. This is due not only to provincial competence over the issue, but also because of uncertainty following a series of appellate judicial interpretations of existing rules, whether these are drawn from legislation or jurisprudence. The Supreme Court recently had the opportunity to resolve some of the this ambiguity in Momentous.ca v. Canadian American Association of Professional Baseball. But in a laconic twelve paragraph decision, the highest court rather muddied the waters even more. This article will try to shed light on the differing treatment of forum selection clauses across the country and determine whether change is warranted and if so, what form it might take.

Download a copy of the paper via SSRN here.

Related articles

Richard Garnett on "The Hague Choice of Court Convention: Magnum Opus or Much Ado About Nothing?"

November 18, 2010
Richard Garnett (University of Melbourne – Law School) has a post on SSRN entitled: “The Hague Choice of Court Convention: Magnum Opus or Much Ado About Nothing?”. Journal of Private International Law, Vol. 5, No. 1, 2009 /U of Melbourne Legal Studies Research Paper No. 503. The abstract reads:
It is a truism to note that in the past 50 years there has been an enormous expansion in international commerce and communications and that with such expansion there has been a proportionate increase in the volume and intensity of transnational disputes. The growth in such disputes has led to greater contact and conflict between legal systems. Rules of private international law which arose only rarely in the business of most national courts are now examined and applied regularly.

The problem of multi-jurisdictional adjudication where a single transaction spawns applications for relief in a number of countries pursuant to a number of different laws is becoming commonplace. Such a development has cast particular light on the rules for establishing jurisdiction in national courts and also the principles governing recognition and enforcement of judgments of foreign courts. Once greater attention and scrutiny was placed on the national rules of jurisdiction and enforcement of judgments it is not surprising that disparities and inconsistencies of approach were uncovered.

Typically, European defendants would complain of excessive exercise of jurisdiction by United States courts while US plaintiffs would bemoan the fact that European (and other national) courts were inconsistent and unreliable in recognising US judgments. While such a situation had been present for a long time it was the sheer volume of recent transnational disputes that made a solution more pressing.

The other development which had masked the problem of disparate national jurisdictional and judgment rules was the increased use and popularity of international commercial arbitration beginning in the 1980s. Once advisers realised that they could refer transnational business disputes to a private, neutral panel of their choice whose awards would be recognised by national courts in the vast majority of cases, the problems of transnational litigation could be often ignored.

Yet, international commercial arbitration has not been without its critics or its disadvantages, in particular cost in the large institutional arbitrations. This fact, combined with the problem that a number of transnational disputes could not be submitted to arbitration (eg. personal injury, consumer and employment cases) meant that the need for a globally uniform system of jurisdiction and judgment rules remained acute.

Paul Beaumont in his article in this colloquium traces the at times tortuous history of the Hague Conference negotiations and how the Hague Convention on Choice of Court Agreements (“the Convention”) emerged from what had originally been envisaged as a much larger project. Other contributors to this colloquium have made detailed considerations of particular provisions or subject matter in the Hague Convention. My task, by contrast, is to examine the Convention from a more holistic and forward-looking perspective. Specifically, the question I will address is whether the Convention will be regarded as a great achievement in the history of multilateral reform of private international law or instead will it be seen as a narrow document which allows too much scope for the intrusion of national interests at the expense of harmonisation?

In addressing this dichotomy, the Hague Convention will be examined from two main perspectives: firstly the likely impact of its principal provisions in Australian law and secondly the response to the Hague Convention among governments, practitioners and scholars in other potential Contracting States.

Ronald A. Brand on "Recognition Jurisdiction and the Hague Choice of Court Convention"

August 6, 2010
Ronald A. Brand (University of Pittsburgh – School of Law) has posted his chapter entitled:”Recognition Jurisdiction and the Hague Choice of Court Convention“, from the forthcoming Festschrift, LIBER AMICORUM KREŠIMIR SAJKO, Hrvoje Sikiric, Vilim, Boucek, & Davor Babic, eds. Here is the SSRN abstract:
This chapter, written to honor Professor Krešimir Sajko of the University of Zagreb, considers the question of personal jurisdiction in U.S. courts at the stage of submission of a foreign judgment for recognition. Existing cases dealing with both recognition of foreign judgments and with the recognition of foreign arbitral awards under the New York Convention fail to provide a clear position on (1) whether either personal jurisdiction or quasi in rem jurisdiction through the presence of the judgment/award debtor’s assets is required, and (2) if quasi in rem jurisdiction is relied upon, just what allegation or proof of the presence of the judgment/award debtor’s assets within the jurisdiction is necessary. The analysis here ends with the conclusion that due process for purposes of recognition jurisdiction may be satisfied based on concepts of consent that are fundamental to the operation of both the New York Convention and the 2005 Hague Convention on Choice of Court Agreements. Such a result would place the United States in a position consistent with its future treaty partners under the Hague Convention on the matter of recognition jurisdiction.

Professor Krešimir Sajko, University Of Zagreb

Hélène van Lith, "International Jurisdiction and Commercial Litigation: Uniform Rules for Contract Disputes"

November 9, 2009
Hélène van Lith (Erasmus Universiteit Rotterdam) has published a new legal text entitled: International Jurisdiction and Commercial Litigation: Uniform Rules for Contract Disputes, ( T.M.C. Asser Press/Cambridge University Press, 2009). Here is the publisher’s description:
This exploration of the basic approaches to international jurisdiction in commercial contractual disputes contains a comprehensive analysis of jurisdictional regimes of major continental European countries, England, the United States and the Brussels Regulation 44/2001. It includes an exhaustive comparative study of each rule establishing jurisdiction over disputes arising from transnational commercial contracts entered into between private entities and/or corporations. The analysis includes key issues such as defendant’s forum, corporate domicile, contract jurisdiction, branch jurisdiction, transacting and doing business, and describes the importance of U.S. due process standards, fair trial considerations and the forum (non) conveniens doctrines. It further explores whether any common grounds in international jurisdiction rules exist and assesses the feasibility of a uniform global system for international contractual disputes also in relation to the previous work of The Hague Conference of Private International Law on a worldwide jurisdiction convention.

Contents

Foreword F.J.M. De Ly; Acknowledgements; Abbreviations; 1. Introduction; 2. Uniform jurisdiction rules in Europe: the Brussels Regulation; 3. National jurisdiction rules in continental Europe; 4. The traditional common law rules of England; 5. The jurisdictional scheme of the United States; 6. Contrasting approaches to international jurisdiction; 7. Assessing bases for international jurisdiction in contract disputes; 8. Correction mechanisms: jurisdictional requirements and exceptions; 9. Conclusions and propositions; Bibliography; Table of cases; Table of legislation; Index.

HT: Xandra Kramer via conflictoflaws.net 


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