16 Courts, Litigation, and Arbitration

Subject(s):

Contract — Choice of law

This chapter reviews the important characteristics of the judiciary of a jurisdiction, including business orientation, risks involved in the choice of courts, the reasons for a particular choice of courts, and some key indicators of litigation, including US litigation, as well as class actions and discovery of documents. It discusses pre-judgment freezes, the enforcement of foreign judgments, sovereign immunity, and the advantages and disadvantages of arbitration. Parties are generally able to choose the jurisdiction to hear disputes on their contract. A choice of courts to back up the choice of governing law is crucial for a number of reasons, including to benefit from the predictability approach in interpretation of contracts; to coincide the choice of courts with the governing law; to benefit from the commerciality, business orientation, and expertise of the chosen courts; to benefit from their favourable conflict of laws rules of the chosen court; to improve the insulation from foreign laws; and to avoid adverse mandatory rules of the forum.