Лектор докладно проаналізувала разом з учасниками застереження про вибір юрисдикції, а саме:

1. General Characteristic of the Forum Selection 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 вибору юрисдикції акцентовано на наступному:

1. General Characteristic of the Forum Selection Clause – загальна характеристика

Choice of law:

1. Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I)– for the contractual obligations.

2. Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) – for the non contractual obligations.

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 is typically done to take advantage of differences in laws, procedural rules, or likelihood of a favorable outcome in different courts

Definitions & Legal Interpretation:

For example, a party may file a lawsuit in a jurisdiction known for awarding higher damages in civil cases or in a country where enforcement of certain laws is more lenient. While forum shopping can be a strategic legal move, it is sometimes criticized as an abuse of the judicial system when done purely to manipulate outcomes rather than seek fair justice.

Origins and Jurisdictional Differences:

• Choice of Forum Claus:

• A clause in a contract where the parties agree in advance that any disputes will be litigated in a specific court (or courts) in a particular country.

• It is a contractual agreement, binding as part of the contract itself.

• It operates ex antе- i.e., at the moment of contract formation, the parties lock in their agreement about the competent court.

• Submission to Jurisdiction Clause:

• 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 can be contractual (written in advance) or procedural (arising later through conduct).

• It operates ex post — i.e., once a dispute exists, the party consents to litigate before a certain court, often by not challenging jurisdiction or by expressly submitting.

Key Distinctions:

1. Choice of forum must meet formal requirements (usually written and explicit).

2. Submission may be implied (e.g., not contesting jurisdiction in first procedural step).

3. Choice of Forum in Legal Negotiations and Advocacy – вибір юрисдикції у правовому дискурсі

The forum selection clause, which allows contracting parties to agree in advance on the jurisdiction for resolving disputes, has evolved significantly over time, shaped by both legal theory and judicial decisions.

Historically, courts were reluctant to enforce forum selection clauses, particularly in common law jurisdictions such as the United States and England. Courts viewed such clauses as limiting judicial authority and possibly leading to unfair outcomes. The prevailing doctrine held that jurisdiction could not be determined by private agreements but rather by statutory or procedural rules.

Lee v. Fisher, decided by the U.S. Court of Appeals for the Ninth Circuit on June 1, 2023:

Case Background:

• Parties Involved: Plaintiff:A shareholder of The Gap, Inc.​ Defendants:The Gap, Inc. and its board of directors.

• Issue: The plaintiff filed a derivative lawsuit in federal court, alleging violations of Section 14(a) of the Securities Exchange Act of 1934, which pertains to false or misleading statements in proxy solicitations.

• Forum Selection Clause:The Gap's bylaws included a provision stating that the Delaware Court of Chancery would be the exclusive forum for derivative actions.

• Court's Decision: The Ninth Circuit upheld the forum selection clause, resulting in the dismissal of the plaintiff's federal lawsuit. The court reasoned that such clauses are generally enforceable unless they contravene a strong public policy. In this case, the court found no such policy that would render the clause unenforceable, even though it effectively precluded the plaintiff from bringing the federal claim in any court, as the Delaware Court of Chancery lacks jurisdiction over federal securities claims.

4. Resources for Further Learning – корисні посилання для поглиблення знань

Special Literature (2003): The rules by which a venue is selected and settled upon for the resolution of any given transnational dispute have fostered a complex, fascinating and burgeoning body of law of great commercial significance. As courts and legislatures seek to fashion sophisticated yet practical jurisdictional responses to this issue, practitioners strive to maximize their clients' prospects of success by securing their own preferred venue.

For so long as different forums yield the prospect of different outcomes in the resolution of any given dispute, litigation about where to litigate is inevitable.

Forum shopping is the province of plaintiffs and defendants alike.

The guiding principle of the 'natural forum' the common law's conceptual response to disputed questions of venue -is subjected to detailed analysis and compared with the more orderly response of jurisdiction-regulating conventions, most successfully effected in EU Regulation 44/2001 and its progenitor, the Brussels Convention.