Arbitration and jurisdiction agreements are frequently used in transnational
commercial contracts. Sophisticated commercial parties adopt
them to reduce risk, gain efficacy and acquire certainty and predictability.
Both agreements have specific contractual requirements for their formation,
incorporation and validity, have the prorogation effect to make the
chosen forum competent and have the derogation power to deprive any
otherwise competent fora of their jurisdiction. Both generate complex
and interesting questions on the conflict of jurisdiction and interaction
with anti- forum shopping measures, such as lis pendens, forum non conveniens,
anti- suit injunction and anti- arbitration injunction. Because of the
similarities between the two types of frequently used dispute resolution
agreements, they are often treated in a similar way by courts and
practitioners.
This book offers a comparative study on the prerequisites, effectiveness
and enforcement of exclusive jurisdiction and arbitration agreements in
international dispute resolution in order to determine whether the clauses
have the identical effects in private international law and whether they
have been or should be given the same treatment by most countries in the
world. The book compares the treatment of jurisdiction and arbitration
clauses in the US, China, the UK and the EU to demonstrate how, in practice,
exclusive jurisdiction and arbitration agreements are enforced. In
light of all this, the book considers whether the Hague Convention could
be treated as a litigating counterpart of the New York Convention and
whether it could work successfully to facilitate judicial cooperation and
party autonomy in international commerce.
I gave a four- day training course on law relating to procedural autonomy
in the EU- Macau Judicial Cooperation/Mutual Trust Programme in
Macau during June 2011. This lecture inspired me to do further research
on this issue and to compare detailed rules concerning validity, effectiveness
and enforcement between jurisdiction and arbitration agreements. I
would wish to express my gratitude and appreciation to Professor Paul
Beaumont for his recommendation and Macao Law Reform and International
Law Bureau for the invitation and organization