Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter C.9: Choice of forum and submission to jurisdiction

Adrian Briggs

I. Introduction

The question whether a court has jurisdiction to adjudicate is, in principle and at the outset, a matter of public law, which may be codified or statutory or derived from case-law, or inherent, or framed by all of these (→ Jurisdiction, foundations). The question whether a court has jurisdiction to adjudicate in circumstances in which the parties to litigation have made an agreement as to the forum for the resolution of disputes, or in circumstances in which the defendant is willing to submit to the jurisdiction of a court in which the claimant proposes to institute or has instituted proceedings, is likewise a matter of public law. But if the jurisdictional law of the state in question takes notice of and gives effect to the agreement of the parties, or to the willingness of the defendant to submit to the jurisdiction, it may be necessary to address a number of subsidiary questions which provide detailed data as to the agreement made or not made, or as to the basis for the contention that there has been a submission.

The question whether parties to litigation may choose their forum, or may submit to the jurisdiction of a court, may and probably must therefore be examined at two levels. At the level of jurisdictional principle one looks to the law of judicial jurisdiction so far as relating to prorogation of jurisdiction (that is, the extent to which the parties may confer jurisdiction by agreement), and as relating to derogation from jurisdiction (that is, the extent to which the parties may agree to free themselves from the jurisdiction which a court would otherwise have). This enquiry will include whether the jurisdictional law applicable in that court makes provision for any discretion when giving effect or not to the agreement by which it is otherwise satisfied. At the level of detail, in order to test a contention that the parties made an agreement on or choice of forum, upon which they may ask a court to act, a number of subordinate issues may arise and require resolution before a court is able to apply its jurisdictional law. Six of these subordinate issues will be examined below, namely: (i) whether the parties did actually make a choice, (ii) how a court should proceed if there is dispute whether an agreement on forum was made or is still operative, (iii) p. 328whether the agreement needs to be in contractually valid or written or other form, (iv) whether the agreement is mandatory or permissive as far as the parties are concerned, (v) whether the agreement should be read as mutual or as one-sided and (vi) whether the particular dispute falls within the material scope of the agreement.

There are also issues which are ancillary to the exercise or non-exercise of jurisdiction by a court in accordance with its jurisdictional law. Of these the principal question is whether the agreement also imposes enforceable obligations on the parties to it which may be given effect (i) by refusing to recognize a judgment which conflicts with the agreement on forum, or (ii) by an → injunction to restrain the party who proposes to bring proceedings in disregard of the agreement, or (iii) by a claim for → damages for loss resulting from breach of the agreement.

II. The effect of an agreement made by the parties on the jurisdiction of a court

In general it is correct to say that subject to important exceptions, to be elucidated below, if the parties have made an agreement for the jurisdiction of a particular court, and no material challenge is made to the validity or the substance of that agreement, practically all mature legal systems will now accept and will exercise jurisdiction in accordance with, or at least consistently with, the agreement which the parties have made: in this respect the ability of parties today to determine jurisdiction for themselves is probably greater than it has ever been. In civilian systems, where jurisdictional rules are more usually codified, the existence of an agreement on jurisdiction may itself be stated as a rule which establishes the jurisdiction of a court, or (where the agreement is for a foreign court) the basis for a rule denying the jurisdiction of the court. In common law systems, where jurisdiction depends on effecting service of process (→ Service of documents), the existence of an agreement on jurisdiction may be a reason to authorize service to be made ex juris, or for a court to not exercise jurisdiction which it had by reason of service of process made within the jurisdiction.

There are exceptions to such establishment of jurisdiction, of course, which will vary from court to court and case to case, but the principle that parties may agree to the jurisdiction of a court, and that if they have done so the jurisdiction of the court is liable to be established, is pervasive. Also at a general level, a court which finds that the parties have made an agreement to derogate from the jurisdiction of the court which would otherwise have jurisdiction will often give effect to that agreement, though whether this is done as a matter of strict law or judicial discretion will vary from court to court. Once again, there are exceptions to the principle that an agreement on jurisdiction is a sufficient basis for derogation from jurisdiction.

1. Establishing jurisdiction by choice, agreement or submission

The principle that the jurisdiction of a court may be established by the choice or consent of the parties needs no elaboration. If the voluntary appearance of a defendant who has been summoned by the service of process will establish the jurisdiction of the court, it should generally follow that an agreement made in advance of the summons to accept the jurisdiction of the court should have the same broad effect. Such agreement may take many forms: the appointment of an agent or attorney to accept service of process, and an agreement in contractual form (→ contractual obligations) are the most common. In the context of the (recast) Brussels I Regulation (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), [2012] OJL 351/1) (→ Brussels I (Convention and Regulation)), the jurisdiction of a court in a Member State of the EU in → civil and commercial matters may be established by voluntary appearance (art 26 Brussels I Regulation (recast)) or by agreement which complies with certain requirements of substance and form (art 25 Brussels I Regulation (recast)). Where these provisions confer jurisdiction on the court, its exercise at the behest of the claimant is mandatory. The legislative position adopted in the Brussels I Regulation is clear, but by drawing on the common legal heritage of the Member States it is also of illustrative value, showing the particular importance of these provisions in the overall scheme of jurisdiction in civil and commercial matters.

There are exceptions to the general rule that parties may establish the jurisdiction of a court by prior agreement or by voluntary p. 329appearance. In much the same way as there are some issues which are not justiciable at all, there are also contexts in which the law declines to give effect to the apparent willingness of the parties to establish the jurisdiction of a court by agreement. Common examples are cases which would call upon a court to adjudicate title to foreign land, or to rule on the validity of entries on foreign public registers, or to determine the validity of foreign patents (see, for example, art 25(4) Brussels I Regulation (recast)). There are also limitations in terms of the nature of the parties or the relationship between them: it is not unusual to find that where one of the parties is a consumer dealing with a professional (→ Consumer contracts), or an insured dealing with an insurer (→ Insurance contracts), or an employee dealing with an employer (→ Employment contracts, jurisdiction), for example, an agreement on jurisdiction will not be given effect if it is made before the dispute had arisen and would prevent the weaker party from suing in a court which would otherwise have been available to him (for example arts 15, 19 and 23 Brussels I Regulation (recast)). But in some of the instances in which an agreement on jurisdiction might not have been accepted as establishing in advance the jurisdiction of the designated court, the voluntary appearance of the defendant may establish jurisdiction in any event. Where the agreement which the parties made would have prorogated the jurisdiction of a court, a voluntary appearance before the courts of a different Member State will confer jurisdiction, this being seen as a tacit modification of the earlier agreement.

In cases in which, or before courts to which, the Brussels I Regulation does not apply, the question whether the agreement of parties to agree to or establish the jurisdiction of a designated court will be effective to achieve that result will be, in the final analysis (and subject to whatever reasoning is relied on under the law of the designated court), dependent on the jurisdictional law of the designated court. While one may say with some confidence that such designation will frequently be effective, it is not fruitful to seek to particularize the cases in which it will not, as these will vary from court to court and from case to case. Having said that, it is generally true that national laws are at their more restrictive when dealing with jurisdiction agreements made between consumers and professional parties.

2. Derogation from jurisdiction by choice or agreement

The usual context of an argument about derogation is that whereas the defendant wishes to argue that the jurisdiction before which he is being sued has been chosen against, the claimant wishes, as can be seen from his conduct in commencing proceedings otherwise than in the agreed court, to invoke the jurisdiction of the court whose jurisdiction is said to have been derogated from. In a closed, comprehensive, and integrated jurisdictional system such as that established by the Brussels I Regulation, the rules which go to establish jurisdiction by agreement also operate, equally, to derogate from the jurisdiction of a court which would otherwise have had jurisdiction. So, for example, if the parties agree that the courts of France, and no other courts, are to have jurisdiction to settle a dispute which has arisen between them, the agreement on jurisdiction will, at the same time as it establishes the jurisdiction of the French courts, remove the jurisdiction of the courts of other Member States which might otherwise have had general, residual or special jurisdiction. Limitations are placed on the effectiveness of jurisdiction agreements in the context of insurance, consumer and employment contracts, where the vulnerability of the supposedly weaker party is the justification for entrenching certain jurisdictional privileges (→ Consumer contracts; → Insurance contracts; → Employment contracts, jurisdiction). In the context of the exclusive jurisdiction given to courts in those instances mentioned above, such as cases requiring determination of title to land in another Member State and which may not be derogated from by agreement or by voluntary submission, jurisdiction agreements may not be allowed any effect at all.

It remains a question of some difficulty within the context of the Brussels I Regulation whether a court with general or special jurisdiction, but which concludes that the parties freely entered into an agreement to derogate from its jurisdiction in favour of the courts of a non-Member State, is permitted to find (and, if so, on what precise grounds) that this serves to derogate from its jurisdiction. The ECJ certainly gave the impression that a court was at liberty to do this if its national law would otherwise have directed it to do so (Case C-387/98 Coreck Maritime GmbH v Handelsveem BV [2000] ECR I-9337), but there are readings of stray passages p. 330in other judgments which, by virtue of the Court’s insistence that the exercise of jurisdiction as conferred by the Regulation is mandatory, are considered by some to cast doubt upon this answer. The Brussels I Regulation (recast) does not help as much as it should, for it cedes jurisdictional priority to the courts of a non-Member State only in the case in which the non-Member State court was seized earlier in time than the court of a Member State; where there are no such prior proceedings, the Regulation is silent as to the legal effect of a jurisdiction agreement for a non-Member State. That the legislator should have avoided dealing with the question which arises when the non-Member State court was agreed to but has not been seized first is as surprising as it is regrettable: there is a choice of legal policy to be made, and it was the privilege, and should have been seen as the duty, of the legislator to make it. Nevertheless, the general principle that rules of jurisdiction should be clear, predictable and reliable would strongly suggest that a court should be at liberty to give effect to a jurisdiction agreement for a non-Member State if it is satisfied that this was agreed to by the parties.

3. Discretion in relation to prorogation and derogation

It is not possible to say whether a court which accepts that it is possible to prorogate its jurisdiction, or to derogate from its jurisdiction, will in general give effect to the agreement of the parties as a matter of strict law or of judicial discretion. Certainly the approach of the common law systems would be to consider derogation as a matter going to the discretionary non-exercise of jurisdiction. Even if other systems of law consider that the derogation of jurisdiction is to be given effect as a matter of strict law, the conditions upon which it will be analysed and done will, in practice, narrow the apparent difference between this and the common law’s approach. It is most improbable that any legal system can take a rigid approach to a question which must, in practice, pay attention to the point in the litigation at which the derogatory agreement is pleaded or relied on, the court’s perception of the nature and quality of the administration of justice in the designated court, and on whether a judgment from the designated court would be recognized under the law of the court whose jurisdiction is proposed to be derogated from, among other factors.

In the context of the Brussels I Regulation, where the jurisdiction agreement is for the courts of a Member State, the answer is a clear one: if the jurisdiction agreement is valid, this being tested by reference to the rules and detailed wording of the Brussels I Regulation itself, there is no discretion to not give effect to it. This remains true, even though the litigation may involve multiple parties, only some of whom are party to or bound by the agreement on jurisdiction. Not everyone is persuaded that this contributes to the proper functioning of the system of jurisdiction put in place by the Brussels I Regulation, not least because of its tendency, in such circumstances, to fragment litigation and to increase the risk of irreconcilable judgments. Outside this context, though, and given the great range and diversity of courts, it is in the highest degree improbable that discretion, or a technique having equivalent effect, can be avoided as the solution to the jurisdictional question.

III. Particular issues arising from the law on agreements on jurisdiction

As noted above, the law on jurisdiction is reasonably clear at a general level, but this statement conceals some of the difficulties which can arise in an acute form if the parties to litigation dispute the existence or validity or scope or legal effectiveness of an alleged agreement on jurisdiction. If any of these problematic questions is raised, it is not until it has been sufficiently dealt with that the court asked to make an order by reference to an agreement on jurisdiction will have ascertained the basis upon which it should act or refrain from acting. The points are taken in the order in which they were stated in the introduction to this section.

1. Issues subordinate to the existence or exercise of jurisdiction

If there is dispute whether the parties did make an agreement at all, it is widely held that for the purposes of jurisdiction, attention has to be confined to whether they agreed or failed to agree to the jurisdiction of a court, and that this failure cannot be demonstrated by merely showing that they failed to reach agreement on the terms of a substantive contract, or by showing that they did reach agreement, but that one of the parties has since rescinded the substantive contract (for example, see art 25 final p. 331sentence Brussels I Regulation (recast)). Several overlapping reasons explain why this should be so. Not all legal systems take the view that an agreement for the jurisdiction of a court requires it to be shown that there was a contractually binding agreement to that effect: a unilateral statement of willingness to accept the jurisdiction of a court, or to renounce the jurisdiction of another court, ought to be capable of being effective, quite apart from any substantive contract. Moreover, the parties might well have intended that the designated court should have the particular function of being the body which will determine whether the parties were contractually bound to each other; it would defeat the rational intentions of the parties to argue that the jurisdiction of the court could only ever be agreed to where the parties had made a valid and binding contract which contained this provision as one of its terms and which remained in force. Whether achieved by a principle of severability or by regarding an agreement on jurisdiction as something separate and distinct from a contractual agreement on jurisdiction, the end result should be the same: to impeach the substantive agreement is not to impeach the jurisdictional agreement associated with it; the arguments which impeach an agreement on jurisdiction will generally have to be specific to the jurisdiction agreement.

But if there is a dispute as to the jurisdictional agreement, a court must take a practical approach to the question whether there is an agreement on jurisdiction to which it may be asked to give effect. The procedural law of most jurisdictions will, it seems, resolve this question by asking which side has the better of the argument at the point at which the jurisdictional decision needs to be taken. In spite of what is now said in art 31(2) Brussels I Regulation (recast), there is no a priori reason to prefer the contentions of the party who contends that there was or is an agreement on the jurisdiction of the court over those of the party who denies this. No doubt a court should be astute to frustrate a party who, having agreed to the jurisdiction of a court, now repents of his choice and seeks to find reasons, which may be genuine or spurious, but which might require lengthy investigation to get to their root, to prevent its having effect. It may also be that if the parties have brought or allowed themselves to come to the point at which a court could properly conclude that there was an agreement on jurisdiction, the proposed agreement on jurisdiction should be given the benefit of the doubt. But this does still involve taking sides, even if conditionally, with the litigant who contends that there was an agreement on jurisdiction, and this may be open to question.

There is no reason to suppose that an agreement to the jurisdiction of a court needs to be made in contractual form: there is every reason to suppose that it does not need to be, though if it is contained in a contract, it may have other effects or additional consequences as a result. It should be open to a party to prorogate jurisdiction by a unilateral act as well as by contractual agreement, and if jurisdiction may be prorogated by voluntary appearance, it should also be possible to assent to it by unilateral declaration. The tradition of the common law has been rather slow to acknowledge that this is possible, for most of its thinking about jurisdiction agreements has taken place in the context of contractual disputes in which the alleged jurisdiction agreement is, if it exists at all, a contractual term. But it should neither be accepted nor deduced that this places any limits on the manner in which the agreement is arrived at or on the circumstances in which the assent of the defendant to the jurisdiction may be shown. For example, for C to be bound by a jurisdiction agreement entered into between A and B, C may be substituted for B as a contracting party by process of law, but if this does not happen, C must manifest his own jurisdictional consent, in proper form: this requires no contract to be made by C, but does require some form of formal, unilateral act. Brussels I Regulation (recast), in this respect following the approach of the Hague Choice of Court Convention (→ Hague Conference on Private International Law), says that the validity of the agreement on jurisdiction is to be assessed, where there is dispute on the matter, by recourse to the law of the designated court (art 25(1) Brussels I Regulation (recast)). Though this is consistent with the view that the agreement on jurisdiction does not need to be, or subjected to scrutiny as though it were, contractual, for the law of the designated court might not be the law of the substantive agreement between the parties, it will still add unnecessary complexity to the law. Of course, if the parties have made a contractual agreement as to where litigation will or will not take place, then while this cannot override or suppress the jurisdictional rules of the court whose jurisdiction is otherwise in dispute, it may lay the foundation for a separate p. 332argument about the failure to comply with contractual promises, and which is examined further below.

However, even if an agreement on jurisdiction need not be contractually valid or contractually validated or invalidated, that is not the end of the story. There is still a need for a mechanism by which to assess whether the agreement was sufficient for it to be proper to hold the parties to it and to draw the jurisdictional consequences which would follow from it if it is. In the context of the Brussels I Regulation this was primarily done by requiring the agreement to jurisdiction to be in writing or evidenced in writing, or in a form which the parties have previously used and accepted, or in a form which is usual and used in the particular international trade in which the parties are engaged (art 25(1) Brussels I Regulation (recast)). The European Court has insisted, time and again, that the purpose of these ‘formal’ requirements is to guarantee that there was a genuine consensus, or, at least, to provide enough of a guarantee to justify giving jurisdictional effect to the supposed agreement (for example, Case C-106/95 Mainschiffahrts-Genossenschaft eG (MSG) v Les Gravières Rhénanes SARL [1997] ECR I-911, para 15). It is debatable whether a writing requirement is capable of meeting the heavy and diverse burdens placed on it, for there is writing which is not the product of genuine agreement, and genuine agreements which are not reduced into writing. A broad and flexible principle of good faith should be able, but is also indispensable, to smooth the edges of the law and to yield a sensible answer.

The effect which an agreement on jurisdiction has may depend on whether it was, on a true construction, intended to be exclusive or non-exclusive: that is, binding the parties to litigate in or merely permitting one of them to bring the other before the designated court. The Brussels I Regulation provides that an agreement will be exclusive unless the parties have provided otherwise (art 25(1) Brussels I Regulation (recast)). This, though, is no more than a reflection of the rational rule that the nature and quality, content and extent of the agreement is a matter for the parties who should be permitted to fashion the agreement which they want, even if the impact that this agreement has on the jurisdiction of the court is then a matter for the jurisdictional law of the court in question. If there is dispute as to the meaning of words to define the agreement, a common lawyer’s instinct would be to refer the issue of construction to the law which governed the contract of which the agreement on jurisdiction is a term. This is justifiable in cases in which the agreement on jurisdiction was made as a term of a larger contract, but works less well where it was simply a unilateral statement of willingness to accept the jurisdiction of a court. In those cases it seems probable, though not entirely satisfactory, that a court will make recourse to its own domestic law. This may result in the agreement being construed contra proferentem, or its being made subject to a presumption in favour of one or another possible construction, but it will also tend to mean that the precise factual basis upon which the ultimate jurisdictional decision is taken may vary from court to court. It appears to be the law in some systems that a jurisdiction agreement which is expressed to be exclusive of all other jurisdictions if A sues B, but not exclusive of the jurisdiction of otherwise-competent courts if B sues A, is intrinsically invalid (Cass civ (1) 26 Sept 2012, nº 11–26.022, [2013] J.Dr.Int’l 175, [2013] ILPr 181). It is hard to see why this should be, for if the relationship between the parties is not a consumer contract, or anything like that, it is strange that the freedom of commercial parties to make an agreement on jurisdiction in the precise form which they agree to it should be constrained in this way.

Whether the particular dispute falls within the material scope of the agreement must also be a question answered, in the first instance at least, by rules of construction, for it is a matter of ascertaining the content and extent of the parties’ agreement. As with the previous point about exclusive or non-exclusive jurisdiction agreements, the point of first recourse will be to look to the law which governs any contract of which this jurisdictional provision is a term, for if the question is what the parties actually agreed to, the law which governs the agreement in which they set out their intentions is a good place to begin. Otherwise a court may be tempted to apply its own law to the question, which would be open to the same objections as set out above. The prevailing common law approach to such questions of construction is to give the words which define the scope of the agreement as broad an interpretation as they are reasonably capable of bearing. This is justified on the basis that it is hardly sensible for rational parties to include some kinds of dispute which might have been seen to arise between them, but not others, within the scope of an agreement on p. 333jurisdiction. Other systems might be more challenged by, or reject, a contention that general words of scope may embrace claims based on the alleged fraud or other serious wrongdoing of the party responsible for the wording of the agreement, and it is hard to deny that there is sense in such a view.

2. Issues ancillary to the existence and exercise of jurisdiction

It is in some respects clear, and in other respects debatable, that a jurisdiction agreement may do something other than play a part in a court’s determination whether it has or will exercise jurisdiction. In many legal systems, recognition of a foreign judgment (→ Recognition and enforcement of judgments (civil law), → Recognition and enforcement of judgments (common law)) may be refused if it is shown that the foreign court took or exercised jurisdiction contrary to the terms of an agreement on jurisdiction. In the context of the Brussels I Regulation this is not the case (cf arts 34 and 35 Brussels I Regulation; art 45 Brussels I Regulation) – a state of affairs which is tolerable only because the court which exercised jurisdiction is to be assumed to have applied the jurisdictional rules of the Brussels I Regulation properly, with the consequence that the exercise of jurisdiction contrary to a jurisdiction agreement for the courts of a Member State should not occur. But if a court in a Member State exercised jurisdiction contrary to the terms of a jurisdiction agreement for a non-Member State, it appears that this furnishes no basis for the non-recognition of the judgment, which is a more challenging outcome. It might have been hoped that the Hague Choice of Court Convention would have dealt with this issue and reinforced a choice-of-court agreement by providing for the non-recognition of a judgment which conflicted with such an agreement, but the Convention failed to rise to the challenge.

A separate and distinct question concerns whether an agreement on jurisdiction imposes private and enforceable obligations on the parties to it, which may be enforced or reinforced by an → injunction ordered to restrain the party who proposes to bring proceedings in disregard of the agreement, or by a claim for damages for loss resulting from breach of the agreement. The view now widely accepted in the common law tradition is that where a jurisdiction agreement is a term of the contract, it is conceptually straightforward to conclude that it has been breached, and that the consequences of breach may be worked through in the ordinary private law of commercial → remedies. Even though the jurisdiction agreement serves a specific function as a matter of public law in relation to the jurisdiction of courts, there is no reason why it cannot also serve as the foundation for promissory, behavioural, obligations which each party undertakes to the other. To illustrate the point, suppose an agreement between A and B that proceedings will be brought only before the courts of state Y. This may not, under the jurisdictional law of state Z, prevent the courts of state Z from exercising jurisdiction. But it is still open to A to promise B not to bring proceedings against B before the courts of state Z. If A makes such a promise and then resiles from it, and that promise was contained in a contract, the conclusion that this amounts to a breach of contract by A seems naturally to follow. That being so, it is easy to see why a judgment from the courts of state Z, given against B, should not be recognized as res judicata. But it also explains why a court whose domestic law allows it to grant injunctions to restrain breaches of contract may see such an order as the proper response to a breach of contract. It may also support the argument that if B is able to prove the financial loss which he sustained by reason of his having been sued in state Z, when A had promised not to do this, he may maintain a claim for damages for breach of contract. Indeed, it is sometimes hard to appreciate why these ideas might be seen as being at all controversial.

That all being said, it may still be surprising that a common law court may order an → injunction, against someone in the position of A in the example described, which has the effect (whether direct, indirect or as a measure having equivalent effect) of interfering with proceedings lawfully – so far as the jurisdictional law of state Z is concerned – before the courts of state Z. A common lawyer may say, entirely correctly as a matter of common law, that the injunction has nothing whatever to do with the judge in state Z who, it will be assumed, has applied his jurisdictional law entirely scrupulously. The injunction responds to wrongdoing by a wrongdoer, and so strikes at an altogether different target, that is, A, who is doing the very thing he contracted with B that he would not do. A civilian lawyer may in turn regard that as p. 334sophistry and object that, in effect, the English court is interfering in matters which are exclusively for the presiding judge in state Z to deal with. Neither point of view can be lightly dismissed. Within the closed world of the Brussels I Regulation, the supervening principle is that the courts of one Member State have no power to interfere with proceedings before the courts of another, and that an injunction would have this impermissible effect. All theory aside, this is a perfectly sensible understanding of the economy of the Brussels I Regulation. But it can have no relevance in cases falling outside the scope of the Brussels I Regulation, and for which the only available answer is that each court will have to find the answer in the sensitive application of the rules of its own legal tradition.

As to whether breach of a jurisdictional agreement in a contract result in damages, it is hard to see why it would not, even though proof of the causing of loss might be challenging. However, if one rejects in limine the proposition that a jurisdiction agreement gives rise to any form of private law rights and obligations, this conclusion will presumably not follow. In England, there appears to be no judicial doubt about the sustainability of a claim for damages for breach of the personal obligations assumed by parties to an agreement on jurisdiction (see Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG (The Alexandros T) [2014] EWCA Civ 1010, though the decision is actually the implementation of clear guidance from the Supreme Court).

IV. Submission to jurisdiction

Compared with the complexity of the law and underlying facts which apply where there is or may be an applicable jurisdiction agreement, the law on submission is straightforward. As noted above, there are some circumstances or kinds of claim in which, according to the jurisdictional law of the court proposed to be seized, it is not open to a defendant to submit to the jurisdiction of a court before which he has been summoned by a claimant. These do not need to be repeated.

Two specific points need finally to be dealt with. First, there is a general consensus that a defendant should be able to contest the jurisdiction of the court before which he is sued on legal grounds, or the exercise of jurisdiction on discretionary grounds, without his appearance being taken as a submission to the jurisdiction of the court. Accordingly, an appearance before a court which has the primary purpose of objecting to the jurisdiction will not normally be seen as a submission to the adjudicatory jurisdiction of the court. The procedure will vary from court to court. In some jurisdictions, a jurisdictional objection must be made and finally disposed of before any step is taken in relation to the merits of the claim, failing which the step taken will be seen as a submission: this is the English approach, which takes the view that jurisdiction must be determined prior to the first step in the resolution of the merits unless the defendant waives any objection which he might have made. In others, it is open to a defendant to plead as to the jurisdiction as well as the merits, at the same time, and not be taken to have submitted to the jurisdiction of the court: this is understood to be the position in France, where a challenge to jurisdiction may be made when filing the first defence. Second, although a defendant who submits to the jurisdiction by contract submits to the extent that the contract so provides, and does not submit to claims and matters falling outside it, a defendant who submits by appearance cannot normally be heard to say that he is submitting p. 335only to certain claims, but not to others which may be added by amendment, or to claims by certain individuals, but not to cross claims by co-defendants, or to claims later made by parties added to the proceedings. In principle, and probably in law, a defendant who submits to the jurisdiction submits to the entirety of the procedural law of the court in question, including its power to allow new claims to be added into original ones.

Literature

  • Andrew Bell, Forum Shopping and Venue in Transnational Litigation (OUP 2003);

  • Ronald Brand and Scott Jablonski, Forum Non Conveniens: History, Global Practice and Future under the Hague Convention on Choice of Court Agreements (OUP (USA) 2007);

  • Adrian Briggs, Agreements on Jurisdiction and Choice of Law (OUP 2008);

  • Adrian Briggs, The Subtle Variety of Jurisdiction Agreements [2012] LMCLQ 364;

  • Trevor Hartley, Choice-of-Court Agreements under the European and International Instruments (OUP 2013);

  • David Joseph, Jurisdiction and Arbitration Agreements and Their Enforcement (3rd rev edn, Sweet & Maxwell 2014);

  • Catherine Kessedjian, La Convention de La Haye du 30 juin 2005 sur l’élection de for [2006] J.Dr.Int’l 813;

  • Justin Newton, The Uniform Interpretation of the Brussels and Lugano Conventions (Hart 2002).