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

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

18 Pages Posted: 13 Feb 2014

See all articles by Jürgen Basedow

Jürgen Basedow

Max Planck Institute for Comparative and International Private Law

Date Written: December 5, 2013

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.

Keywords: Private international law, jurisdiction, choice-of-courts agreements, overriding mandatory provisions

Suggested Citation

Basedow, Jürgen, Exclusive Choice-of-Court Agreements as a Derogation from Imperative Norms (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, Available at SSRN: https://ssrn.com/abstract=2390620

Jürgen Basedow (Contact Author)

Max Planck Institute for Comparative and International Private Law ( email )

Mittelweg 187
Hamburg, 20148
Germany

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