Effect of consent to jurisdiction to measures of constraint

Issue 4 Exclusive jurisdiction clauses

Conditions for the validity of exclusive jurisdiction clauses

C. Jurisdictional factors for consideration

Among the major multilateral institutions, the WTO maintains jurisdiction over trade.

Should the draft instrument allow for exclusive jurisdiction clauses?

Conclusions reached by the Working Group regarding exclusive jurisdiction clauses

10 Decision on Interlocutory Appeal Regarding Temporal Jurisdiction , 29 July 2004.

Should exclusive jurisdiction clauses be enforceable against third parties?

For this reason, it is one of the States that recognize the Court's compulsory jurisdiction.

In the course of rejecting the jurisdictional argument, the Court held that the CISG applied to the contract.

Whilst there is no jurisdictional clause under the American Declaration, and the United States had not raised the issue of extraterritoriality, the Commission did so proprio motu. The Commission found that it had the competence to address the issue.

Further, it was noted that this issue was of such importance in some jurisdictions that there were domestic provisions in place to override the operation of exclusive jurisdiction clauses.

In this connection, it was pointed out that, in order to be effective, an exclusive jurisdiction clause must bind third parties.

It was suggested that this provision should be revisited once the Working Group has made its decision regarding exclusive jurisdiction clauses.

It was also suggested that a reference to the provisions of the draft instrument on jurisdiction and arbitration should be inserted in draft article 88a (5)(b).

It was suggested that provisions could be included in the draft instrument requiring that certain conditions be fulfilled prior to the valid exercise of an exclusive jurisdiction clause.

It is safe to say that the jurisdictional powers of the Tribunal have not yet been exhausted.

A note of caution was raised regarding the possibility of overstating the importance of including or excluding exclusive jurisdiction clauses in the draft instrument.

Consequently, it did not consider itself bound to submit to arbitration as a means of settling disputes, nor did it recognize the compulsory jurisdiction of the International Court of Justice.

Consequently, it did not consider itself obligated to refer to arbitration as a means of settlement of disputes, nor did it recognize the compulsory jurisdiction of the International Court of Justice.

Similarly, article 12, on jurisdiction over non commercial torts, must be interpreted and applied consistently with the time honoured distinction between acts jure imperii and acts jure gestionis.

It was suggested that, given the decision of the Working Group to include in the draft instrument provisions with respect to jurisdiction, the inclusion of provisions on recognition and enforcement would be desirable in order to reinforce the likelihood that resort could predictably be had to the jurisdiction provisions.

It was suggested that exclusive jurisdiction clauses were quite common in the commercial context, since they provided a means to increase predictability and to reduce overall costs for the parties.

Additional advantages of providing for exclusive jurisdiction clauses in the draft instrument were said to be a potential reduction of the number of possible jurisdictions in the case of multiple suits, particularly in the absence of concursus provisions, and a reduction in the risk of forum shopping.

The contrary view was expressed, that exclusive jurisdiction clauses should never apply to third parties, since they were not parties to the contract.

This concentration on the most senior leaders suspected of being most responsible for crimes committed within the jurisdiction of the ICTR is in conformity with Security Council resolution 1534 (2004).

The Federal Court also has authority to order the stay of an expulsion order pending consideration of an application for judicial review.

A smaller number of delegations expressed the strongly held view that the draft instrument should not allow parties to a contract of carriage to agree to exclusive jurisdiction clauses.

Concern was raised that the application of exclusive jurisdiction clauses to third parties would unfairly take away their right to choose the forum from the options in draft article 72.

El Salvador stated in its reservation that it did not consider itself bound by article 20, paragraph 2, inasmuch as it did not recognize the compulsory jurisdiction of the International Court of Justice.

The Working Group considered the general question of whether the draft instrument should allow for parties to the contract of carriage to agree to an exclusive jurisdiction clause.

In this respect, it was suggested that it might be possible to broaden the avoidance of conflicts beyond jurisdiction conflicts by substituting the word chapter with instrument .

It has also reduced friction that might arise between countries because of recourse to extraterritorial enforcement of competition laws or of jurisidictional conflicts.

Further, it was suggested that attaching conditions to prevent abuse would eliminate the possibility of surprise, which, it was submitted, was the key concern with respect to exclusive jurisdiction clauses in a commercial context.

The commentary will also explain that this recommendation refers to insolvency rules without regard to whether they are characterized for any purpose as procedural, substantive, jurisdictional or otherwise.

Further, it was suggested that the other requirements for derogation from the draft instrument set out under proposed new article 88a should also be fulfilled in order to allow for the valid operation of exclusive jurisdiction clauses (see above, para.

It was suggested that the requirement that an exclusive jurisdiction clause be expressly agreed might negate the perceived need to limit their validity to proposed new article 88a volume contracts.

It was suggested that the conditions proposed could provide for the building of a compromise position between those firmly opposed to and those firmly in favour of the application of exclusive jurisdiction clauses to third parties.

It was suggested that small claims are usually handled locally, regardless of jurisdiction clauses, and that larger claims are often dealt with on both the cargo and carrier side on a non local basis by insurers.

Upon ratifying, accepting, approving or acceding to the present Convention, each State Party shall notify the Secretary General of the United Nations of the jurisdiction it has established under its domestic law in accordance with paragraph 2 of the present article.

Mine Action

Division of

10 NS, 12 UNV

(8 posts) 1 ASG, 1 P 5, 2 P 4, 2 GS, 2 NS