The Freedom and Limits of International Choice of Forum

Asymmetric arbitration and jurisdiction agreements have recently sparked debate among legal scholars and courts in many jurisdictions worldwide. Adopting a holistic approach, this book examines their enforceability in leading civil law and common law jurisdictions (France, Germany, UK, US) and beyond, under the New York Arbitration Convention, the European Arbitration Convention, the Brussels Ibis Regulation and the Lugano Convention, while also considering the case law of the European Court of Justice and the European Court of Human Rights.

Party autonomy is the starting point in any discussion of both choice of court clauses (in transnational litigation) and arbitration clauses (in international arbitration). Parties are in principle free to determine the forum, typically the exclusive forum. But does party autonomy allow parties to enforce asymmetric choice of forum clauses? Several legal systems and commentators favor solutions that lie at an extreme. For some, party autonomy requires respect for such clauses as drafted, at least if freely and fairly agreed upon, while for others, equality and fundamental fairness demand that no such provisions be enforced. This book skillfully navigates between these extremes, demonstrating that neither of these values need necessarily override the other. If we value both party autonomy and elemental fairness, then it behooves us to find a middle ground. That precisely is what Richard Schmidt both undertakes and achieves in this masterful book. - Prof. George A. Bermann, Columbia University School of Law, USA

This book offers a compelling analysis of asymmetric jurisdiction and arbitration agreements in a broad comparative context. For the arbitration community, this publication is especially important, as a valid arbitration agreement is a cornerstone of arbitration. Yet the enforceability of asymmetric choice of forum agreements remains a pressing and practical concern rather than a purely academic debate, considering the diverging international case law. Confronting this inconsistency, Schmidt undertakes an in-depth comparative study drawing on EU legislation and jurisprudence, common law and civil law traditions, and relevant supranational regulations. This volume makes a significant and timely contribution to the international arbitration literature and will be an interesting read for scholars and practitioners alike. - Dr. hab. Beata Gessel-Kalinowska vel Kalisz, Prof. Institute of Law Studies of the Polish Academy of Sciences