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8 Relevance of the European Convention on Human Rights and Charter of Fundamental Rights of the EU to the enforcement of asymmetric clauses in the EU and England

From: Asymmetric Jurisdiction Clauses

Brooke Marshall

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 04 March 2024

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

This Chapter considers the relevance of the European Convention on Human Rights and Charter of Fundamental Rights of the EU to the enforcement of asymmetric clauses in the EU and England. It does so by reference to the fair trial right, guaranteed by both those instruments, and to the freedom to conduct a business secured by the latter. Specifically, it asks whether the right to a fair trial may limit, and the freedom to conduct a business may corroborate, the enforcement of asymmetric jurisdiction clauses, proceeding on the basis that asymmetric clauses are, at least notionally, waivers or restrictions by one party of certain elements of its fair trial right. It examines the extent to which the ancillary procedural clauses that generally accompany asymmetric clauses, such as forum non conveniens or FNC waivers, and concurrent proceedings provisions, shape the analysis.

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