Лектор докладно проаналізувала разом з учасниками Submission to Jurisdiction Clause, а саме:
1. General Characteristic of the Submission to Jurisdiction Clause – загальна характеристика.
2. Exploring Forum Shopping in Legal Writing – вибір юрисдикції у юридичному документообігу.
3. Choice of Forum in Legal Negotiations and Advocacy – вибір юрисдикції у правовому дискурсі.
4. Resources for Further Learning – корисні посилання для поглиблення знань
У рамках характеристики Submission to Jurisdiction Clause акцентовано на наступному:
1. General Characteristic of the Submission to Jurisdiction Clause – загальна характеристика
A Submission to Jurisdiction Clause is an agreement by which one or both parties consent to the jurisdiction of a specific court after a dispute arises or by participating in proceedings without objection.
It may appear in two forms:
· Contractual submission – written in advance in the contract.
· Procedural submission – arising later through conduct during litigation.
The clause operates ex post, meaning that once a dispute exists, the party agrees to litigate before a particular court. This consent may occur, for example, when a party does not challenge jurisdiction at the first procedural step or expressly submits to the authority of a specific court.
In contrast to the choice of forum clause, which determines the competent court at the moment of contract formation (ex ante), submission to jurisdiction arises after the dispute has already appeared.
Another important distinction is that choice of forum clauses must meet formal requirements (usually written and explicit), while submission to jurisdiction may also be implied from the conduct of the parties.
2. Exploring Forum Shopping in Legal Writing – вибір юрисдикції у юридичному документообігу
Forum shopping refers to the practice of choosing the most favorable jurisdiction or court in which to bring a legal case. This choice is made to benefit from differences in laws, procedural rules, or the likelihood of a favorable outcome in different courts.
The term “shopping” comes from ordinary human behavior: comparing options in a market before choosing the most beneficial one. Lawyers adopted this metaphor and applied it to litigation strategy.
The issue of forum selection and forum shopping has developed into a complex body of law of great commercial significance, especially in transnational disputes. Courts and legislatures attempt to create practical jurisdictional solutions, while practitioners aim to maximize their clients’ chances of success by securing their preferred forum.
As long as different forums offer different potential outcomes in dispute resolution, disputes about where to litigate will continue to exist.
3. Choice of Forum in Legal Negotiations and Advocacy – вибір юрисдикції у правовому дискурсі
A choice of forum clause is a contractual provision where parties agree in advance that disputes will be resolved in a specific court or courts in a particular country. It is a binding contractual agreement that determines jurisdiction at the moment the contract is concluded (ex ante).
Forum selection clauses can vary depending on their structure and wording. The main types include:
· Exclusive vs. Non-exclusive clauses – an exclusive clause requires disputes to be brought only in the chosen forum, while a non-exclusive clause allows litigation in other courts as well.
· Asymmetric clauses – clauses that favor one party by giving it broader rights to choose the forum.
· Mandatory vs. Permissive wording – language such as “shall be brought” creates an obligation, while “may be brought” only allows the possibility. The wording can significantly affect enforceability.
An important judicial example is Owusu v. Jackson (2005), where the Court of Justice of the European Union ruled that EU courts cannot decline jurisdiction in favor of a non-EU court under the doctrine of forum non conveniens. This decision strengthened the principle of predictable jurisdictional rules.
Another example is Lee v. Fisher, where the court upheld a forum selection clause in The Gap’s bylaws requiring derivative actions to be filed in the Delaware Court of Chancery. The court held that forum selection clauses are generally enforceable unless they violate strong public policy.
4. Resources for Further Learning – корисні посилання для поглиблення знань
EU legal acts:
· Regulation (EC) No 593/2008 – regulates the law applicable to contractual obligations.
· Regulation (EC) No 864/2007 – governs the law applicable to non-contractual obligations.
Jurisdiction instruments:
· Regulation (EU) No 1215/2012 – regulates jurisdiction and recognition of judgments in the EU.
· Hague Convention on Choice of Court Agreements – international treaty concerning court choice agreements.
Ukrainian legislation:
· Law of Ukraine 'On Private International Law', which recognizes forum selection clauses in Ukrainian law.
These sources provide the legal framework for understanding jurisdiction agreements and forum selection in international disputes.