Issue 4 Exclusive jurisdiction clauses

Conditions for the validity of exclusive jurisdiction clauses

My delegation also has some procedural concerns, such as the non inclusive negotiating process.

Should the draft instrument allow for exclusive jurisdiction clauses?

(g) Continue to improve its assets management and annual inventory checks (para. 102)

Conclusions reached by the Working Group regarding exclusive jurisdiction clauses

That will create certain problems of interpretation regarding the application of the principle of exclusive international jurisdiction.

Should exclusive jurisdiction clauses be enforceable against third parties?

Another related cause of market failure can be a lack of exclusive ownership rights.

The issuance and the transfer of a negotiable electronic transport record means the issuance and the transfer of exclusive control over the record.

The use of nuclear power for exclusively peaceful purposes would cut down on environmental damage and harmful climate change.

24. Reaffirms that changes in mandated programmes and activities are the prerogative of the General Assembly

UNHCR agreed with the Board's recommendation to continue to improve its assets management and annual inventory checks.

The main practices investigated were resale price maintenance, tied sales and exclusive contracts.

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

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Costa Rica Resale price maintenance, and exclusive contracts in the market for carbonated non alcoholic beverages and bottled fruit juice.

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.

However, concern was also expressed that recourse to arbitration might hinder the application of the rules of the draft instrument on exclusive jurisdiction.

The recommendations adopted by the Committee are without prejudice to the right of the troop contributing countries to exercise exclusive jurisdiction over their own contingents.

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

That recommendation was commented on in a favourable manner, while most delegations expressed the view that a Peacebuilding Commission should not be placed under the sole authority of the Security Council.

With regard to the language on exclusive jurisdiction, it is our interpretation that it does not affect the universal jurisdiction of Member States in areas such as war crimes, torture and terrorism.

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.

The view was expressed that further thought should be given to the question of whether the second part of draft article 1 (f)(ii) with respect to exclusive control was necessary.

Rwanda, too, has enacted regulations that eliminate exclusive agreements, opening doors for micro finance institutions to become payment service providers.

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

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.

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.

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.

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.

Furthermore, it must be remembered that this issue would be essentially irrelevant to the extent that exclusive forum selection clauses are fully enforceable.

Finally, it was suggested that the reference to maritime performing parties would be necessary to ensure that the carrier would not escape liability by invoking the exclusive liability of the maritime performing parties.

Article 76 of A CN.9 WG.III WP.56 (which the U.S. opposes in its current form) also deals with the enforceability of exclusive choice of forum clauses.

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.

It was added that, since arbitration agreements were allowed in the draft proposal exactly in the same cases where exclusive jurisdiction clauses would be recognized, that basic principle of the New York Convention was not affected by the proposed text.

However, there was also support for the suggestion that the Working Group could decide on whether or not to include draft paragraph 72 (e) independently of its decision regarding an exclusive jurisdiction clause.

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.

The view was also expressed that exclusive jurisdiction clauses should be limited to cases of derogation by certain volume contracts from the provisions of the draft instrument pursuant to proposed new article 88a (see above, para.

While it was admitted that there was a danger that exclusive jurisdiction clauses could pose a danger in adhesion contracts, it was submitted that when contracts were freely negotiated there were strong commercial reasons for making the choice of court provisions exclusive.

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.

Further, it was noted that the name and address of the carrier were already required in the contract particulars pursuant to draft article 34 of the draft instrument, and that including that information as necessary for the validity of an exclusive jurisdiction clause would provide an additional incentive for the carrier to comply.

To that end, we reiterate our call for the Organization to discard its exclusionary practices and embrace as equal partners all nations, such as Taiwan, that are able and willing to contribute to international collaborative efforts in the pursuit of global peace, security and development.