Rethinking Judicial Jurisdiction in Private International Law: Party Autonomy, Categorical Equality and Sovereignty (Studies in Private International Law)

This book explores the theory and practice of judicial jurisdiction within the field of private international law. It offers a revised look at values justifying the power of courts to hear and decide cross-border disputes, and demonstrates that a re-conceptualisation of jurisdiction is needed. Rather than deriving from territorial power of states, jurisdiction in civil and commercial cross-border matters ought to be driven by party autonomy. This autonomy can be limited by certain considerations of equality and critical state sovereign interests. The book applies this normative view to the existing rules of jurisdiction in the European Union and the Russian Federation. These regimes are chosen due to their unique positions towards values in private international law and contrasting societal norms that generate and accommodate these values. Notwithstanding disparate cultural and political ideas, these regimes reveal a surprising level of consistency when it comes to enforcement of party autonomy. There is, nevertheless, room for improvement. The book demonstrates to scholars, policy makers and lawmakers that jurisdiction should be re-centred around the interests of private actors, and proposes ways to improve the current rules. Volume 24 in the series Studies in Private International Law Series Editor’s Preface Preface Contents List of Abbreviations Table of Cases Table of Legislation 1. Introduction 2. Reconciliation of Values in Jurisdiction I. The Big Picture II. Summary of Jurisdiction Rules in the EU and Russia PART I: PARTY AUTONOMY IN PRIVATE INTERNATIONAL LAW ON JURISDICTION 3. Autonomy as a Foundational Value for Jurisdiction I. Introduction II. Definition of and Justification for Autonomy III. Autonomy as a Proper Foundation for Matters of Private International Law and Jurisdiction IV. Sovereignty: Not a Starting Point for the Law on Jurisdiction 4. Autonomy in the Law on Jurisdiction: Harmony and Controversy I. Linking Theory to Practice II. Party Autonomy ex ante III. Party Autonomy Bordering Other Issues IV. Party Autonomy ex post V. Conclusion PART II: PARTY EQUALITY 5. Categorical Equality in the Law on Jurisdiction I. Introduction II. Equality Limiting Party Autonomy: Normative View III. Critical Analysis of Positive Law on Protective Jurisdiction IV. Conclusion 6. Jurisdiction in Tort and Contract in the Absence of Choice of Forum: Balance Exercise I. Introduction II. Jurisdiction in Torts: Interpretation and Justification III. No Choice of Forum in Contract: Jurisdiction at the Place of Performance IV. Conclusion PART III: SOVEREIGNTY AND PARTY AUTONOMY 7. Sovereignty and Party Autonomy in Civil and Commercial Jurisdiction I. Introduction II. Extent of International Sovereignty in Private International Law III. Home Sovereignty and its Limited Role in the Law on Jurisdiction IV. Ultimate State Sovereignty: Public Interest 8. Sovereignty and Territoriality in the Law on Jurisdiction I. Defining Domicile for the Purpose of Jurisdiction II. State Sovereign Interests Overriding Party Autonomy to Protect the Integrity of the State III. Conclusion 9. Overall Conclusions and Recommendations I. Jurisdiction by Parties' Agreement ex ante II. Jurisdiction by Parties' Agreement ex post III. Jurisdiction Protecting Categorical Equality IV. Jurisdiction in the Absence of Forum Selection (Tort) V. Jurisdiction in the Absence of Forum Selection (Contract) VI. Jurisdiction in the Absence of Forum Selection (Other) VII. Limited Exclusive Jurisdiction Overriding Party Autonomy to Maintain Sovereignty Bibliography Index V. Jurisdiction in the Absence of Forum Selection (Contract) VI. Jurisdiction in the Absence of Forum Selection (Other) VII. Limited Exclusive Jurisdiction Overriding Party Autonomy to Maintain Sovereignty. 1. Introduction 2. Reconciliation of Values in Jurisdiction I. The Big Picture II. Summary of Jurisdiction Rules in the EU and Russia PART I PARTY AUTONOMY IN PRIVATE INTERNATIONAL LAW ON JURISDICTION 3. Autonomy as a Foundational Value for Jurisdiction I. Introduction II. Definition of and Justification for Autonomy III. Autonomy as a Proper Foundation for Matters of Private International Law and Jurisdiction IV. Sovereignty: Not a Starting Point for the Law on Jurisdiction 4. Autonomy in the Law on Jurisdiction: Harmony and Controversy I. Linking Theory to Practice II. Party Autonomy ex ante III. Party Autonomy Bordering Other Issues IV. Party Autonomy ex post V. Conclusion PART II PARTY EQUALITY 5. Categorical Equality in the Law on Jurisdiction I. Introduction II. Equality Limiting Party Autonomy: Normative View III. Critical Analysis of Positive Law on Protective Jurisdiction IV. Conclusion 6. Jurisdiction in Tort and Contract in the Absence of Choice of Forum: Balance Exercise I. Introduction II. Jurisdiction in Torts: Interpretation and Justification III. No Choice of Forum in Contract: Jurisdiction at the Place of Performance IV. Conclusion PART III SOVEREIGNTY AND PARTY AUTONOMY 7. Sovereignty and Party Autonomy in Civil and Commercial Jurisdiction I. Introduction II. Extent of International Sovereignty in Private International Law III. Home Sovereignty and its Limited Role in the Law on Jurisdiction IV. Ultimate State Sovereignty: Public Interest 8. Sovereignty and Territoriality in the Law on Jurisdiction I. Defining Domicile for the Purpose of Jurisdiction II. State Sovereign Interests Overriding Party Autonomy to Protect the Integrity of the State III. Conclusion 9. Overall Conclusions and Recommendations I. Jurisdiction by Parties' Agreement ex ante II. Jurisdiction by Parties' Agreement ex post III. Jurisdiction Protecting Categorical Equality IV. Jurisdiction in the Absence of Forum Selection (Tort). "This book explores the theory and practice of judicial jurisdiction within the field of private international law. It offers a revised look at values justifying the power of courts to hear and decide cross-border disputes, and demonstrates that a re-conceptualisation of jurisdiction is needed. Rather than deriving from the territorial power of the states, jurisdiction in civil and commercial cross-border matters ought to be driven by party autonomy. This autonomy can be limited by certain considerations of equality and critical state sovereign interests. The book applies this normative view to the existing rules of jurisdiction in the European Union, the common law, and the Russian Federation. These regimes are chosen due to their unique positions towards values in private international law and contrasting societal norms that generate and accommodate these values. Notwithstanding disparate cultural and political ideas, these regimes reveal a surprising level of consistency when it comes to enforcement of party autonomy. There is, nevertheless, room for improvement. Therefore, the book demonstrates to scholars, policy makers and lawmakers that jurisdiction should be re-centred around the interests of private actors, and proposes ways to improve the current rules"-- Informació facilitada per l'editor "This book explores the theory and practice of judicial jurisdiction within the field of private international law. It offers a revised look at values justifying the power of courts to hear and decide cross-border disputes, and demonstrates that a re-conceptualisation of jurisdiction is needed. Rather than deriving from the territorial power of the states, jurisdiction in civil and commercial cross-border matters ought to be driven by party autonomy. This autonomy can be limited by certain considerations of equality and critical state sovereign interests. The book applies this normative view to the existing rules of jurisdiction in the European Union, the common law, and the Russian Federation. These regimes are chosen due to their unique positions towards values in private international law and contrasting societal norms that generate and accommodate these values. Notwithstanding disparate cultural and political ideas, these regimes reveal a surprising level of consistency when it comes to enforcement of party autonomy. There is, nevertheless, room for improvement. Therefore, the book demonstrates to scholars, policy makers and lawmakers that jurisdiction should be re-centred around the interests of private actors, and proposes ways to improve the current rules"-- Provided by publisher

This book explores the theory and practice of judicial jurisdiction within the field of private international law. It offers a revised look at values justifying the power of courts to hear and decide cross-border disputes, and demonstrates that a re-conceptualisation of jurisdiction is needed. Rather than deriving from territorial power of states, jurisdiction in civil and commercial cross-border matters ought to be driven by party autonomy. This autonomy can be limited by certain considerations of equality and critical state sovereign interests. The book applies this normative view to the existing rules of jurisdiction in the European Union and the Russian Federation. These regimes are chosen due to their unique positions towards values in private international law and contrasting societal norms that generate and accommodate these values. Notwithstanding disparate cultural and political ideas, these regimes reveal a surprising level of consistency when it comes to enforcement of party autonomy. There is, nevertheless, room for improvement. The book demonstrates to scholars, policy makers and lawmakers that jurisdiction should be re-centred around the interests of private actors, and proposes ways to improve the current rules.