Consent, Validity and Choice of Forum Agreements in International Contracts

LIBER AMICORUM HUBERT BOCKEN, I. Boone, I. Claeys, L. Lavrysen, eds., Die Keure, 2009

U. of Pittsburgh Legal Studies Research Paper No. 2009-35

15 Pages Posted: 4 Dec 2009

See all articles by Ronald A. Brand

Ronald A. Brand

University of Pittsburgh - School of Law

Date Written: December 1, 2009

Abstract

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.

Keywords: arbitration, Brussels Regulation, New York Convention, competence-competence, jurisdiction, private international law, separability, consent, validity, European Union, European Community, Hague Conference on Private International Law, international contracts, choice of forum, choice of court

Suggested Citation

Brand, Ronald A., Consent, Validity and Choice of Forum Agreements in International Contracts (December 1, 2009). LIBER AMICORUM HUBERT BOCKEN, I. Boone, I. Claeys, L. Lavrysen, eds., Die Keure, 2009; U. of Pittsburgh Legal Studies Research Paper No. 2009-35. Available at SSRN: https://ssrn.com/abstract=1517810

Ronald A. Brand (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States

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