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Conflict of laws

Preliminiaries

Characterisation · Incidental question Renvoi · Choice of law Conflict of laws in the United States Public policy · Hague Conference

Definitional elements

State · Jurisdiction · Procedure Forum non conveniens · Lex causae Lex fori · Forum shopping Lis alibi pendens

Connecting factors

Domicile · Lex domicilii Habitual residence Nationality · Lex patriae Lex loci arbitri · Lex situs Lex loci contractus Lex loci delicti commissi Lex loci actus Lex loci solutionis · Proper law Lex loci celebrationis Choice of law clause · Dépeçage Forum selection clause

Substantive legal areas

Status · Capacity · Contract · Tort Marriage · Nullity Divorce (Get · Talaq) Property · Succession · Trusts

Enforcement

Enforcement of foreign judgments Mareva injunctions Anti-suit injunctions

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A forum selection clause in a contract with a Conflict of Laws element allows the parties to agree that any litigation resulting from that contract will be initiated in a specific forum. There are three types of clause:

• the reference might be to a particular court in a jurisdiction agreed upon by the parties (although, if the parties make a mistake as to the power of the nominated court to hear the matter, the civil procedures of the nominated jurisdiction will be applied to identify the appropriate court); or
• the clause might refer to a specific kind of dispute resolution process, such as mediation, arbitration (see arbitration clause, lex loci arbitri), or a hearing before a special referee; or
• the clause might refer to both, requiring a specific process to be carried out in a specific location.

Discussion

The choice of law stage in a Conflict case requires the forum court to decide which of several competing laws should be applied to resolve the dispute. In this, there is an important distinction to be made between a forum selection clause and a choice of law clause. As an application of the public policy of freedom of contract, the parties are usually free to nominate the proper law under which all relevant disputes will be resolved. If there is an express selection, this choice will be respected so long as it is made bona fide, i.e. the subjective intention prevails unless the purpose is to:

• evade the operation of some mandatory provisions of a relevant law,
• there was an element of fraud or duress or undue influence involved in the signing of the contract, or
• there was some other evidence of mala fides.

But, if the parties do no more than nominate a forum, this is no more than an indication that they intend that forum's law to apply. There are many reasons why parties may select a forum (see a discussion of forum shopping):

• the forum has established significant expertise in the relevant areas of law, e.g. shipping, charterparties, carriage by air, etc.;
• the standard of judicial decision making may be high:
• there may be no corruption or other outside influence to affect the fairness of the judgments;
• the procedures may be efficient and minimise losses arising through any delay in arriving at a judgment;
• all the major witnesses may be resident within the jurisdiction making the forum convenient (see forum non conveniens); etc.

If the parties have selected a jurisdiction as the place for the resolution of a dispute, the implication is that the courts may nevertheless apply their lex fori which includes their general choice of law principles. Thus, in the ordinary course of legal events, the forum court may identify and apply a foreign law as the proper law. The majority of professionally drafted contracts will address both issues, and contain clauses specifying both the forum and the law to be applied therein. The fact that the particular contract only specifies the forum therefore becomes highly revealing as implying that the parties intended to leave the choice of law issue to the forum nominated.

Forum selection clauses have been criticised by a minority of courts as improper attempts to divest them of personal jurisdiction over the parties. Because of this, some jurisdictions refuse to give effect to these clauses, declaring them to be void as against public policy. However, most jurisdictions now recognise and enforce forum selection clauses, so long as the parties were acting in good faith.

The situation in the U.S.

The United States Supreme Court has upheld forum selection clauses on several occasions, and has suggested that they should generally be enforced. See The Bremen v. Zapata Off-Shore Company, 407 U.S. 1 (1972); Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991). The Bremen case, however, arose under the Court's admiralty jurisdiction, not under diversity of citizenship jurisdiction.

The state of New York has a statute expressly dealing with those circumstances under which a New York court may not dismiss a case on the grounds of forum non conveniens if the parties' contract provides that the agreed upon venue is a court in New York.

Proposed International Convention

In 2005, the Hague conference on private international law issued a draft convention on the enforcement of choice of court clauses.

Wikipedia content modification information:

• This page was last modified on 7 September 2008, at 10:33.

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