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Advanced Introduction to Private International Law and Procedure

Peter Hay

Advanced Introduction to Private International Law and Procedure addresses some key questions through a comparative overview of legal systems, contrasting Anglo-American common law and the civil law approach of the European Union.
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Forum-Selection Clauses

Peter Hay

Extract

(“Brussels Ia” Regulation) appears to be one of the most liberal: Parties from within or without the EU may designate a Member State court to have exclusive jurisdiction. Note, however, that the provision is limited to a choice of a Member State court. The choice of a non-EU court remains a matter of the national law of each of the Member States, and their laws do differ. Furthermore, other provisions of EU law protect “weaker” parties: Consumers, insureds, and employees may be sued only in the states of their domicile. A different forum selection is valid only if concluded after a concrete dispute has arisen. A forum selection needs to be in writing, in an electronic form that can be preserved, or in a “form which accords with usage [in international trade or commerce]” of which the parties were or should have been aware. The last of these, while commercially highly desirable, may of course also be the source of controversy.

The national laws of EU Member States differ. One example is the way that they protect weaker parties to a contract. Another is the way that they guard against misuse, such as when a forum-selection clause becomes part of a contract as part of a party’s “General Conditions.” Illustratively, German law imposes no restrictions on forum-selection agreements concluded by “merchants” (as defined by German commercial law), but achieves the EU law’s weaker party protection in agreements with a non-merchant by not permitting a pre-dispute forum selection unless...

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