Jurisdiction And Arbitration Agreements In International Commercial Law
This decision of the Court of Cassation deserves special attention, as it strongly reminds us that arbitration clauses and jurisdictional clauses – even if they have common characteristics, since they depart from ordinary rules of jurisdiction – are not governed by the same legislation. On the other hand, the jurisdiction clause2 is intended to determine in advance the national court which is the sole jurisdiction to decide any dispute that may arise in the context of the contractual relationship between the parties. The international agreement or national legislation of the majority of states generally provides that the state court must leave without consideration declaration of claim when the arbitration agreement is concluded. (b) the formal validity of an international arbitration agreement must be determined according to the formal rules of validity of the right of arbitration of the country in which the arbitration is based. Initially, the Court of Appeal violated the compromise clause and found that the jurisdiction clause was applicable. The appeal judges, who provided for a detailed interpretation of Article 48 of the French Code of Civil Procedure, which deals with jurisdiction clauses, decided that the Commercial Court had jurisdiction to decide the dispute. They considered that the insurer had not demonstrated that (i) the compromise clause had been taken into account and accepted by Company A and (ii) that it had been included in the terms of the contract. This book provides a comprehensive study of the conditions, effectiveness and application of exclusive jurisdiction and arbitration agreements in international dispute settlement. The question is whether jurisdictional and arbitration clauses in private international law have the same effects and whether they have been or should be treated on the same level by most countries in the world. By comparing the treatment of these clauses in the United States, China, the United Kingdom and the EU, Zheng Sophia Tang shows how, in practice, exclusive jurisdiction and arbitration agreements are applied.
The book examines whether the Hague Convention on the Choice of Judicial Agreements could be considered the title of the New York Convention and whether it could work successfully to facilitate judicial cooperation and the autonomy of the parties in international trade. In other words, the Court of Cassation has made it clear that jurisdiction clauses should not be confused with arbitration clauses. Although the two types of clauses differ from normal jurisdictional rules, they are subject to two different sets of rules. 1 The validity of the arbitration agreement is above all in accordance with the law chosen by the parties. As a general rule, international commercial contracts do not contain specific clauses of choice for the arbitration agreement contained in those contracts. The general choice clause of the law contained in the contract, which establishes the law of the contract, does not necessarily apply to the arbitration agreement, which is a separate contract. (a) The material validity of an international arbitration agreement must be determined in accordance with the law chosen by the parties to this agreement or, without specifying, according to the applicable law at the place (seat) of the arbitration procedure. These two types of clauses depart from the ordinary purpose (for the arbitration clause) and the territorial rules (for the jurisdiction clause).
In other words, the arbitrator must decide first and foremost the existence, validity and extent of the arbitration agreement under which the dispute is referred to him. The national court has no jurisdiction to do so, unless it finds that the arbitration agreement is manifestly nulligie or inoperable.6 “When a dispute referred to an arbitration tribunal on the basis of an arbitration agreement is brought before a national court, the court must declare itself incompetent, unless the matter has not yet been brought before the arbitration tribunal and the arbitration agreement is manifestly unenable or manifestly inoperable.