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Agreements on Jurisdiction and Choice of Law by Briggs, Adrian (20th March 2008)
- Preliminary Material
- Main Text
- 1 Introduction and Scheme
- Preliminary Material
- I Introduction
- II Advance Conclusions
- III Terms and Elements
- IV A Snapshot from 2007
- V Scheme
- 2 Consent in Private International Law
- Preliminary Material
- I The General Principle
- II The Role of Consent in Commercial Law
- III Consent or Agreement, and absence of Consent or Agreement
- IV Consent in the Application and Proof of Foreign Law
- V Consent in Choice of Law
- VI Consent in the Recognition of Foreign Judgments
- VII Consent and the Personal Jurisdiction of the Court
- VIII Consent and the Subject Matter Jurisdiction of the Courts
- IX European Jurisdiction
- 3 Dispute Resolution and Severability
- Preliminary Material
- I Contractual Terms
- II The Nature of Agreements for the Resolution of Disputes
- III Contractual Agreements on Jurisdiction
- IV Separate Natures, or Severable Agreements?
- V The Path to the Principle of Severability
- VI Validity and Severability: Jurisdiction Agreements
- VII The Obverse of Severability
- VIII The Agreement on choice of Law as Part of the Severable Agreement
- IX The Strength and Weakness of Agreement as an Organizing Principle
- X Assumptions and Conclusions
- 4 Clauses, Principles, and Interpretation
- Preliminary Material
- I The Range and Varieties of Jurisdiction Clauses
- II Jurisdiction Clauses: Rights Conferred and Duties Assumed
- III Jurisdiction Agreements as Exemption Clauses
- IV The Scope of the Duty; The Ambit of the Clause
- V Service of Suit Clauses
- VI Combined Arbitration and Jurisdiction Agreements
- VII Choice of Law Clauses
- VIII One Contract but Several Agreements
- IX The Role of European Law
- 5 Drafting Agreements
- Preliminary Material
- I Drafting By Specimen
- II Contractual Variation of the Brussels I Regulation
- III A Specimen Clause: Elaborate Version
- 5.17
- 1 Explanation of contents: elaborate version
- Clause (a) Governing law
- Clause (b) Type of jurisdiction and scope of that jurisdiction
- Clause (b) bis Non-exclusive or optional jurisdiction
- Clause (c) Personal undertakings
- Clause (d) Service of process
- Clause (e) Right of A, but not B, to bring proceedings in any other jurisdiction
- Clause (f) Enforceability despite invalidity of Principal Agreement
- Clause (g) Effect in relation to claims by and against non-parties
- Clause (h) Further undertaking by B in the event of breach of this Clause
- IV A specimen clause: minimalist version
- V Drafting by Incorporation from other Documents
- VI The Meaning of Words and the Use of Authority
- 5.64
- 5.65
- 5.66
- 5.67
- 5.68
- 1 The subject matter: ‘this contract’, ‘this agreement’
- 2 Prepositions, connections, and the terminology of relationship
- 6 Jurisdiction Agreements: Primary Obligations
- Preliminary Material
- 6.01
- 6.02
- 6.03
- 6.04
- 6.05
- 6.06
- 6.07
- 6.08
- I Jurisdiction-Blind Enforcement
- II Development of the Anti-Suit Injunction
- III Objections to Enforcement by order of the English Court
- IV Equitable Maxims as a Restriction on Remedy
- V The Position of Strangers to the Contract
- VI Stays of English Proceedings brought in Breach of Contract
- 7 Jurisdiction Agreements: Brussels I Regulation
- Preliminary Material
- 7.01
- I The Context in which Article 23 is to Operate
- II The Structure of Article 23
- III The Conclusiveness or Inconclusiveness of Writing
- IV What is an ‘agreement’ for the purposes of article 23?
- V Unilateral or bilateral agreement?
- VI Article 23: what writing? Whose writing?
- VII The parties to the ‘particular legal relationship’
- VIII Formal Alternatives to writing which Satisfy Article 23
- IX Article 23 and Those who Depart from the Agreement
- X Injunctions to Enforce agreements about Jurisdiction and Litigation
- XI Turner v Grovit
- XII How persuasive? The burden of proof
- XIII The ‘particular legal Relationship’
- XIV Clarifying the Wording: The United Kingdom
- XV Jurisdiction agreements for the Courts of Non-Member States
- XVI Conclusions
- 8 Jurisdiction Agreements: Secondary Obligations
- 9 Foreign Judgments
- Preliminary Material
- 9.01
- 9.02
- 9.03
- 9.04
- I Common law recognition
- II Judgments from the court designated by a dispute resolution agreement
- III Foreign judgments obtained in breach of a jurisdiction agreement
- IV Overcoming foreign judgments obtained in breach of contract
- V Recognition and enforcement under the regulation
- VI The decision in de wolf v cox
- VII Recognition and Enforcement At The Margin Of The Regulation
- VIII International obligations binding courts, personal obligations binding parties
- 10 Agreements on Choice of Law
- Preliminary Material
- 10.01
- I Contracts: Where the existence of the contract is not in dispute
- II Contracts: Where The Contract Is In Dispute
- III Contracts: the law which governs the consequences of contractual invalidity
- IV Contracts: conclusions about the nature of choice of law for contracts
- V Agreements on choice of law and claims in tort
- VI Choice of law and property rights
- 11 Giving Effect to Agreements on Choice of Law
- Preliminary Material
- I Introduction
- II The Common Law and the Proper Law of a Contract
- III Choice of proper law: Common Intention or Mutual Agreement?
- IV Governing the Contract and Governing Contractual Litigation
- V The Consequence if the Law Agreed for Application is not Applied
- VI Impermissible Choices of Law: SEcondary Consequences
- VII The Alternative: Careful Drafting
- 12 Agreements to Resolve Disputes by Arbitration
- Preliminary Material
- 12.01
- 12.02
- 12.03
- 12.04
- 12.05
- 12.06
- 12.07
- I Preliminary questions and practical answers
- II Who will adjudicate? Who decides who will adjudicate?
- III Another View
- IV To what do the parties agree when they agree to arbitration?
- V The Jurisdiction of the Courts of the Seat
- VI Damages for Breach of the Contract to Proceed by way of Arbitration
- VII Foreign judgments in Breach of arbitration agreement: Brussels I Regulation
- VIII Restraining foreign proceedings in breach of an agreement to arbitrate: Brussels I Regulation
- IX The New York Convention
- X The Problem of Excessive Supervision
- 13 Conclusions
- 1 Introduction and Scheme
- Further Material
