Co-Existing and Conflicting Jurisdiction and Arbitration Clauses

Journal of Private International Law, Volume 9, No. 3, 2013

U of Melbourne Legal Studies Research Paper No. 680

37 Pages Posted: 6 May 2014 Last revised: 15 May 2014

See all articles by Richard Garnett

Richard Garnett

University of Melbourne - Law School

Date Written: 2013

Abstract

It is increasingly common for parties to an international contract to include both jurisdiction and arbitration clauses. While in some cases the clauses can be reconciled by principles of contractual interpretation, in other circumstances a true conflict between the clauses exists. The main contention of this article is that it is not appropriate, as many common law courts appear to have done, to resolve such a conflict by choosing arbitration over litigation based on some presumed superiority of the arbitral process. Instead, courts should adopt an evenhanded approach and apply a version of the 'more appropriate forum' test.

Keywords: jurisdiction, arbitration

JEL Classification: K00, K33, K39

Suggested Citation

Garnett, Richard, Co-Existing and Conflicting Jurisdiction and Arbitration Clauses (2013). Journal of Private International Law, Volume 9, No. 3, 2013, U of Melbourne Legal Studies Research Paper No. 680, Available at SSRN: https://ssrn.com/abstract=2433378

Richard Garnett (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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