Subjects:

Conflict of Laws

Contents:

1. Introduction and Scheme

Introduction

Advance conclusions

Terms and elements

A snapshot from 2007

Scheme

2. Consent in private international law

The general principle

The role of consent in commercial law

Consent or agreement, and the absence of consent or agreement

Consent in the application of foreign law

Consent in choice of law

Consent in the recognition of foreign judgments

Consent and the personal jurisdiction of the court

Consent and the subject-matter jurisdiction of the court

European jurisdiction

3. Dispute resolution and severability

Contractual terms

The nature of agreements for the resolution of disputes

Contractual agreements on jurisdiction

Separate natures, or severable agreements

The path to the principle of severability

Validity and severability: jurisdiction agreements

The obverse of severability

The agreement on choice of law as part of the severable agreement

The strength and weakness of agreement as an organising principle

i Divergence on the existence of a contract

ii Divergence on the content of the bargain

Assumptions and conclusions

4. Clauses, principles, and interpretation

The range and varieties of jurisdiction clause

Jurisdiction clauses: rights conferred and duties assumed

Jurisdiction agreements as exemption clauses

The scope of the duty

the ambit of the clause

Service of suit clauses

Combined arbitration and jurisdiction agreements

Choice of law clauses

One contract but several agreements

The role of European law

5. Drafting agreements

Drafting by specimen

Contractual variation of the Brussels Regulation

A specimen clause: elaborate version

Explanation of contents: elaborate version

A specimen clause: simple version

Drafting by incorporation from other documents

The meaning of words and the use of authority

i Subject matter: 'this contract', 'this agreement'

ii Prepositions, connections, and the terminology of relationship

6. Jurisdiction agreements: primary obligations

Jurisdiction-blind enforcement

Development of the anti-suit injunction

Objections to enforcement by order of the English court

Equitable maxims as restriction on remedy

The position of strangers to the contract

Stays of English proceedings brought in breach of contract

7. Jurisdiction agreements: Brussels Regulation

The context in which Article 23 is to operate

The structure of Article 23

The conclusiveness or inconclusiveness of writing

What is an agreement for the purposes of Article 23 ?

Unilateral or bilateral agreement

Article 23: what writing ? whose writing ?

The parties to the particular legal relationship

Formal alternatives to writing which satisfy Article 23

Article 23 and those who depart from the agreement

Injunctions to enforce agreements about jurisdiction and litigation

Turner v Grovit

How persuasive ? The burden of proof

The particular legal relationship

Clarifying the wording: the United Kingdom Jurisdiction agreements for the courts of non-Member States

Conclusions

8. Jurisdiction agreements: secondary obligations

The starting points of the common law

Union Discount v Zoller and five cases which are less straightforward

Other issues arising within the common law analysis

i The cause of action

ii The assessment of damages

iii Where the nominated court is not in England

Judgments from the courts of a Member State

9. Foreign Judgments

Common law recognition

Judgments from the court designated by a dispute resolution agreement

Foreign judgments obtained in breach of jurisdiction agreement

Overcoming foreign judgments obtained in breach of contract

Recognition and enforcement under the Regulation

The decision in De Wolf v Cox

Recognition and enforcement at the margin of the Regulation

International obligations binding courts

personal obligations binding parties

10. Agreements on choice of law

Contracts: where the existence of the contract is not in dispute

Contracts: where the existence of the contract is in dispute

Contracts: the law which governs the consequences of contractual invalidity

Contracts: conclusions about the nature of choice of law for contracts

Agreements of choice of law and claims in tort

Choice of law and property rights

11. Giving effect to agreements on choice of law

Introduction

The common law and the proper law of a contract

Choice of proper law: common intention or mutual agreement?

Governing the contract and governing contractual litigation

The consequence if the law identified for application is not applied

i Breach of a choice of law

ii Non-monetary responses

iii Monetary remedies

iv Subverting the contract as a tortious wrong

v The Rome Convention

Impermissible choices of law: secondary consequences

The alternative: careful drafting

i Promising to pay

ii Adapting the undertaking in damages

12. Agreements to resolve disputes by arbitration

Preliminary questions and practical answers

Who will adjudicate ? Who decides who will adjudicate ?

Another view

To what do the parties agree when they agree to arbitration ?

The jurisdiction of the courts of the seat

Foreign judgments in breach of arbitration agreement: Brussels Regulation

i Non-recognition of judgments

ii Reversal of judgments

iii Private rights and public duties

Foreign proceedings in breach of agreement to arbitrate: Brussels Regulation

The New York Convention

Damages for breach of the contract to proceed by way of arbitration

The problem of excessive supervision

13. Conclusions

The relative effect of agreements on the resolution of disputes

The Hague Convention on Exclusive Choice of Court Agreements

Reprise: private international law and party autonomy

Wildy's Book of the Month - April 2008

In this book, the author analyses the law and practice relating to the classification, drafting, validity and enforcement of contracts relating to jurisdiction and choice of law. The focus is on English law, EU law and common law measures, but there is also some comparative material built in. The book will be useful in particular to practising lawyers seeking to draft, interpret or enforce the types of contract discussed, but the in-depth discussion will also be valuable to academic lawyers specialising in private international law.

Written by an academic who is also a practising barrister, this book gives in-depth coverage of how the instruments and principles of private international law can be used for the resolution of cross-border or multi-jurisdictional disputes. It examines the operation and application of the Brussels Regulation, the Rome Convention and the Hague Convention on Exclusive Choice of Court Agreements in such disputes, but also discusses the judgments and decisions of the courts in significant cases such as Turner v Grovit, Union Discount v Zoller, and De Wolf v Cox.

Much of the book is given over to practical evaluation of how agreements on jurisdiction and choice of law should be put together, with guidance on, amongst other things, drafting of the agreements (including some sample clauses), severability of agreements, consent, and the resolution of disputes by arbitration.