The Nature and Enforcement of Choice of Court Agreements : A Comparative Study

This book examines the fundamental juridical nature, classification and enforcement of choice of court agreements in international commercial litigation. It is the first full-length attempt to integrate the comparative and doctrinal analysis of choice of court agreements under the Brussels I Recast Regulation, the Hague Convention on Choice of Court Agreements (‘Hague Convention’) and the English common law jurisdictional regime into a theoretical framework. In this regard, the book analyses the impact of a multilateral and regulatory conception of private international law on the private law enforcement of choice of court agreements before the English courts. In the process, it both pre-empts and offers innovative solutions to issues that may arise under the jurisprudence of the emergent Brussels I Recast Regulation and the Hague Convention. The need to understand the nature and enforcement of choice of court agreements before the English courts from the perspective of the EU private international law regime and the Hague Convention cannot be understated. This important new study aims to fill an existing gap in the literature in relation to an account of choice of court agreements which explores and reconnects arguments drawn from international legal theory with legal practice. However, the scope of the work remains most relevant for cross-border commercial lawyers interested in crafting pragmatic solutions to the conflicts of jurisdictions. Volume 19 in the series Studies in Private International Law Series Editor’s Preface Acknowledgements Contents Table of Cases Table of Legislation, International Conventions, Official Papers and Policy Documents 1 Introduction I. Point of Departure II. Multilateral Private International Law Rules and the Nature and Enforcement of Choice of Court Agreements III. Contributions to Knowledge 2 Private International Law, Party Autonomy and the English 'Dispute Resolution' Paradigm I. The ‘Public’ Role and Function of Private International Law II. Private International Law Norms as Secondary Rules for the Allocation of Regulatory Authority and the Separation of Functions within Choice of Court Agreements III. The Emerging Third Paradigm of Jurisdiction and the Quest for a More Comprehensive Understanding of Party Autonomy IV. The Emerging Paradigm of Party Autonomy and the Continued Viability of Private Law Remedies for Breach of Choice of Court Agreements V. The Emerging Paradigm of Party Autonomy and the Proposed Reorganisation of Private International Law Rules on the Basis of a Systematic Distinction between Agreements and Non-agreements VI. Conclusion 3 The Analogy between Arbitration Agreements and Choice of Court Agreements: The Technique of Severability and Whether the Contractualisation Phenomenon Distorts the Fundamental Nature and Effects of Choice of Court Agreements? I. Introduction II. Severability in Dispute Resolution Agreements III. Interim Conclusion IV. Deconstructing the Arbitration Agreement Analogy V. Conclusion 4 Private Law or Public Law? An Assessment of the Fundamental Juridical Nature and Classification of Choice of Court Agreements I. Fundamental Juridical Nature and Classification of Choice of Court Agreements II. Hybrid Jurisdiction-Arbitration Agreements III. Asymmetric or Unilateral Choice of Court Agreements IV. Fundamental Juridical Nature and Classification of Choice of Court Agreements under the Brussels I Regulation (Recast) V. Conclusion 5 ‘Dispute Resolution’ Epitomised: The Damages Remedy for Breach of Choice of Court Agreements I. Introduction II. Preliminary Issue: Practical Solutions for Enforcing English Exclusive Choice of Court Agreements by Drafting Clauses to Guarantee the Secondary Enforcement of Choice of Court Agreements III. The Legal Basis of the Claim for Damages for Breach of a Choice of Court Agreement IV. Contract V. Tort VI. Restitution VII. Damages in Equity VIII. Damages in Lieu of an Injunction: Section 50 of the Senior Courts Act 1981 IX. Recognition and Enforcement of the English Judgment Awarding Damages for Breach of a Choice of Court Agreement 6 An Overview of the Case Law on the Damages Remedy for Breach of Exclusive Choice of Court Agreements: Firmly Entrenched or a Nascent Remedy in Need of Development? I. The English Court of Appeal Validates the Damages Remedy for Breach of English Exclusive Choice of Court Agreements: The Principle of Mutual Trust and Interference with the Effectiveness of the Multilateral Jurisdiction and Judgments Order of the Brussels I Regulation? II. Recovering Damages for the Tort of Inducing Breach of a Choice of Court Agreement against a Claimant’s Legal Advisers: The English Court of Appeal Adjudicates on whether England is the Place where the Economic Loss Occurred under Article 5(3) of the Brussels I Regulation? 7 Assessing the Damages Remedy for Breach of Choice of Court Agreements I. Arguments in Favour of the Damages Remedy for Breach of Choice of Court Agreements II. Arguments against the Damages Remedy for Breach of Choice of Court Agreements III. The Principle of Comity and the Damages Remedy IV. A Comparison of the Damages Remedy with Contractual Anti-suit Injunctions: Implications for Comity and the Relative Effectiveness of Each Remedy 8 An In-depth Examination of the Damages Remedy for Breach of Exclusive Choice of Court Agreements under the English Common Law Jurisdictional Regime I. The Extended Doctrine of Res Judicata based on Abuse of Process as a Control Mechanism to Limit Claims for Damages for Breach of Choice of Court Agreements in the English Courts? II. Conclusion 9 The Damages Remedy and the Brussels I Regime I. The Viability of the Damages Remedy under the Brussels I Regulation: Will the Backdoor Approach of the English Common Law be Permitted? II. Choice of Court Agreements and the Brussels I Regulation (Recast) III. The Scope for Pre-emptive Proceedings and the Damages Remedy for Breach of Choice of Court Agreements in the Brussels I Regulation (Recast): Rendered Redundant or Bequeathed a New Lease of Life? 10 The Hague Convention on Choice of Court Agreements: Qualified Mutual Trust and the Scope for Remedies for Breach of Exclusive Choice of Court Agreements I. Introduction II. Scope of the Hague Convention III. Defining Characteristics of the Hague Convention IV. Anti-suit Injunctions Enforcing Exclusive Choice of Court Agreements and Parallel Proceedings under the Hague Convention V. Exclusive Choice of Court Agreements and Parallel Proceedings in intra-EU Hague Convention Cases VI. Conclusions 11 English Choice of Court Agreements in the Post-Referendum Legal Environment: What Lies Ahead? I. Introduction II. The Aftermath of the Brussels I Recast Regulation III. EU Enforceability: Practical Solutions IV. EU Enforceability: The Hague Convention on Choice of Court Agreements V. Conclusions 12 Conclusions and Contributions to Knowledge Bibliography Index PRAISE FOR THE BOOK: "This constitutes a work of impressive scholarship that will become a major reference point for future discourse on choice of court agreements. Dr Ahmed advances a firm thesis in a lucid manner that will satisfy both academics and practitioners. The discussion is supported by a monumental foundation of underpinning research. Ahmed's monograph throughout shows clear understanding of underlying substantive laws and in Chapter 11 displays a refreshing willingness to engage in intelligent speculation on the implications of Brexit." Professor David Milman, University of Lancaster "The book is an excellent attempt to understand the theoretical underpinnings of choice of court agreements in private international law ... Anyone with an interest in the theory and practice of choice of court agreements, in particular in mechanisms for their enforcement, should read this book. They will find much of value by doing so." Professor Paul Beaumont, University of Aberdeen (from the Series Editor's Preface) This book examines the fundamental juridical nature, classification and enforcement of choice of court agreements in international commercial litigation. It is the first full-length attempt to integrate the comparative and doctrinal analysis of choice of court agreements under the Brussels I Recast Regulation, the Hague Convention on Choice of Court Agreements ('Hague Convention') and the English common law jurisdictional regime into a theoretical framework. In this regard, the book analyses the impact of a multilateral and regulatory conception of private international law on the private law enforcement of choice of court agreements before the English courts. In the process, it both pre-empts and offers innovative solutions to issues that may arise under the jurisprudence of the emergent Brussels I Recast Regulation and the Hague Convention. The need to understand the nature and enforcement of choice of court agreements before the English courts from the perspective of the EU private international law regime and the Hague Convention cannot be understated. This important new study aims to fill an existing gap in the literature in relation to an account of choice of court agreements which explores and reconnects arguments drawn from international legal theory with legal practice. However, the scope of the work remains most relevant for cross-border commercial lawyers interested in crafting pragmatic solutions to the conflicts of jurisdictions. "This book examines the fundamental juridical nature, classification and enforcement of choice of court agreements in international commercial litigation. It is the first full-length attempt to integrate the comparative and doctrinal analysis of choice of court agreements under the Brussels I Recast Regulation, the Hague Convention on Choice of Court Agreements ('Hague Convention') and the English common law jurisdictional regime into a theoretical framework. In this regard, the book analyses the impact of a multilateral and regulatory conception of private international law on the private law enforcement of choice of court agreements before the English courts. In the process, it both pre-empts and offers innovative solutions to issues that may arise under the jurisprudence of the emergent Brussels I Recast Regulation and the Hague Convention. The need to understand the nature and enforcement of choice of court agreements before the English courts from the perspective of the EU private international law regime and the Hague Convention cannot be understated. This important new study aims to fill an existing gap in the literature in relation to an account of choice of court agreements which explores and reconnects arguments drawn from international legal theory with legal practice. However, the scope of the work remains most relevant for cross-border commercial lawyers interested in crafting pragmatic solutions to the conflicts of jurisdictions."--Bloomsbury Publishing.