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3 Justifications for party autonomy in the context of asymmetric jurisdiction clauses

From: Asymmetric Jurisdiction Clauses

Brooke Marshall

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 16 April 2024

Subject(s):
Jurisdictional agreements and the Brussels Regulation — Applicable law — Contractual obligations and freedom of choice — Jurisdictional agreement — Jurisdiction

This Chapter examines normative justifications, and the assumptions underpinning them, for the enforcement of asymmetric jurisdiction clauses. Drawing on the literature on private international law, political philosophy, and law and economics, the Chapter begins by identifying justifications for respecting autonomy in the context of asymmetric jurisdiction agreements. It critically evaluates those within the framework of two broadly defined conceptions of party autonomy: (1) an instrumentalist and, largely, efficiency-driven conception, and (2) a libertarian or rights-based conception, which tethers party autonomy to deontological approaches or to freedom of contract. The Chapter then relies on behavioural law and economics literature, and empirical scholarship to investigate the assumptions and conditions which must be satisfied for these justifications to hold. The Chapter contends that there are notionally multiple normative justifications for the enforcement of asymmetric clauses, but their cogency rises and falls with the truth of many assumptions that asymmetric clauses appear to challenge.

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