Three Phases to Choose a Court: Evidence from a Survey on Lawyers in the EU
12 Pages Posted: 16 Feb 2018
Date Written: February 15, 2018
Choice of court allows parties to choose the jurisdiction that better satisfies their needs, and increase the litigation’s predictability of costs and results. It is, generally, accepted that choice of court is very important in cross-border business-to-business situations. Choice of court is important also for governments that compete to attract the litigation business created by cross-border disputes. In the EU, choice of court is regulated by the Brussels I (recast) Regulation, which allows considerable autonomy in choosing a court, while at the same time it protects vulnerable parties against the abuse of stronger parties. Several studies have provided data on choice of court in the EU. An Oxford study on choice of law and choice of court preferences of cross-border businesses in the EU has showed that England, and Switzerland were the most preferred jurisdictions. Respondents pointed out that they prefer the neutrality, and the quality of judges offered by these jurisdictions. A similar study conducted by the British Institute for International and Comparative Law produced similar results. These studies show a discrepancy between the jurisdiction’s quality and attributes, and the general elements that parties prefer from a jurisdictions. In other words, the jurisdictions that respondents choose do not have the attributes that respondents like, or have them of inferior quality. Some studies suggest that choice makers are influenced by habits or trade usage in choosing a court, which can explain the discrepancy. However, these analysis fail to consider that choice of court is a process with psychological implications, where psychological factors play an important role in choosing a court. This paper argues that choice of court is made in three phases, each of them affected by psychological factors, of which choice makers are not aware. To reach this conclusion, this paper builds on psychological research on choice making, and choice of court habits data obtained through a survey conducted by me. Analysing data from a survey, this article aims to explore how choice making is affected by certain psychological factors related to choice overload. With this aim, this material is organised as follows: the first part describes why lawyers dominate the lawyers-client relationship, effectively taking the decisions in the group; the second section provides an overview of the on the most important psychological elements that affect choice, with particular attention on choice of court; the third part discusses the results of a survey conducted on lawyers in the EU; and the fourth part explains how psychological factors affect choice of court.
Keywords: Choice of court, choice overload, choice paradox, survey on chocie of court, lawyer-client
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