Tuesday, January 12, 2010
Professor Ronald Brand (University of Pittsburgh School of Law) has posted "Consent, Validity and Choice of Forum Agreements in International Contracts" on SSRN.
The abstract states:
The doctrine of separability in international contracts often leads to requests for a court or arbitral tribunal to consider challenges to both the existence and validity of a choice of forum clause prior to hearing party positions on the existence and validity of the remainder of the contract. What is not always clear, however, is what law governs the consideration of choice of forum issues. This inquiry contains at least two important parts: whose law is to govern the determination, and which law (general contract law, procedural law, law on dispute resolution, etc.) is to be applied. This chapter considers the provisions of each the New York Arbitration Convention, the Brussels I Regulation, and the 2005 Hague Convention on Choice of Court Agreements that are applicable to the questions of consent to and validity of choice of forum agreements. Each has different language, without clear distinction to why the language differences exist. The doctrines of separability and competence-competence usually are involved in the determination of what law governs the existence and validity of choice of forum agreements. The existence of a choice of forum agreement and its validity are distinctly different questions, and require consideration beyond the law of jurisdiction or arbitration in order insure that a party to a dispute is not subjected to a forum that would not otherwise have jurisdiction over that party and to whose jurisdiction that party has not consented.