Article: Exclusive Choice-of-Court Agreements as a Derogation from Imperative Norms

Jürgen Basedow 

Max Planck Institute for Comparative and International Private Law

December 5, 2013

Essays in Honour of Michael Bogdan, pp. 15-31, Patrik Lindskoug, Ulf Maunsbach, Göran Millqvist, Per Samuelsson, and Hans-Heinrich Vogel, eds., Juristförlaget i Lund, 2013 

Max Planck Private Law Research Paper No. 14/1

Abstract:

By an exclusive choice-of-court agreement the parties to a contract may avoid the imperative provisions of a country whose courts would have jurisdiction in the absence of such an agreement. A comparative survey shows that the reactions of the deselected courts differ considerably in European countries. While some courts accept their deselection, others invoke the overriding mandatory character of the provisions they would have enforced in order to disregard the choice-of-court agreement. The article discusses the proper approach under the recast version of the Brussels I Regulation, under other emerging international rules and under national law. It distinguishes the deselection of a forum from the deselection of a national law and advocates the recognition of forum selection clauses even where they lead the non-application of mandatory laws of the deselected forum.

Acknowledgement: This contribution is published in this Research Paper Series as a part of the Essays in Honour of Michael Bogdan with the generous and exceptional permission of the rights owner, Juristförlaget i Lund.

Number of Pages in PDF File: 18

Disponível em: <http://ssrn.com/abstract=2390620>. Acesso em 20 fev. 2014.