Rethinking judicial jurisdiction in private international law : party autonomy, categorical equality and sovereignty
Author(s)
Bibliographic Information
Rethinking judicial jurisdiction in private international law : party autonomy, categorical equality and sovereignty
（Studies in private international law, v. 24）
Hart, 2021, c2020
- : pbk
- Other Title
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Reassessing the approach to jurisdiction in civil and commercial matters : party autonomy, categorical equality and sovereignty
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Note
Originally published in 2020
Includes bibliographical references (p. [211]-221) and index
Description and Table of Contents
Description
This book explores the theory and practice of judicial jurisdiction within the field of private international law. It offers a revised look at values justifying the power of courts to hear and decide cross-border disputes, and demonstrates that a re-conceptualisation of jurisdiction is needed. Rather than deriving from territorial power of states, jurisdiction in civil and commercial cross-border matters ought to be driven by party autonomy. This autonomy can be limited by certain considerations of equality and critical state sovereign interests.
The book applies this normative view to the existing rules of jurisdiction in the European Union and the Russian Federation. These regimes are chosen due to their unique positions towards values in private international law and contrasting societal norms that generate and accommodate these values. Notwithstanding disparate cultural and political ideas, these regimes reveal a surprising level of consistency when it comes to enforcement of party autonomy. There is, nevertheless, room for improvement. The book demonstrates to scholars, policy makers and lawmakers that jurisdiction should be re-centred around the interests of private actors, and proposes ways to improve the current rules.
Table of Contents
1. Introduction
2. Reconciliation of Values in Jurisdiction
I. The Big Picture
II. Summary of Jurisdiction Rules in the EU and Russia
PART I
PARTY AUTONOMY IN PRIVATE INTERNATIONAL LAW ON JURISDICTION
3. Autonomy as a Foundational Value for Jurisdiction
I. Introduction
II. Definition of and Justification for Autonomy
III. Autonomy as a Proper Foundation for Matters of Private International Law and Jurisdiction
IV. Sovereignty: Not a Starting Point for the Law on Jurisdiction
4. Autonomy in the Law on Jurisdiction: Harmony and Controversy
I. Linking Theory to Practice
II. Party Autonomy ex ante
III. Party Autonomy Bordering Other Issues
IV. Party Autonomy ex post
V. Conclusion
PART II
PARTY EQUALITY
5. Categorical Equality in the Law on Jurisdiction
I. Introduction
II. Equality Limiting Party Autonomy: Normative View
III. Critical Analysis of Positive Law on Protective Jurisdiction
IV. Conclusion
6. Jurisdiction in Tort and Contract in the Absence of Choice of Forum: Balance Exercise
I. Introduction
II. Jurisdiction in Torts: Interpretation and Justification
III. No Choice of Forum in Contract: Jurisdiction at the Place of Performance
IV. Conclusion
PART III
SOVEREIGNTY AND PARTY AUTONOMY
7. Sovereignty and Party Autonomy in Civil and Commercial Jurisdiction
I. Introduction
II. Extent of International Sovereignty in Private International Law
III. Home Sovereignty and its Limited Role in the Law on Jurisdiction
IV. Ultimate State Sovereignty: Public Interest
8. Sovereignty and Territoriality in the Law on Jurisdiction
I. Defining Domicile for the Purpose of Jurisdiction
II. State Sovereign Interests Overriding Party Autonomy to Protect the Integrity of the State
III. Conclusion
9. Overall Conclusions and Recommendations
I. Jurisdiction by Parties' Agreement ex ante
II. Jurisdiction by Parties' Agreement ex post
III. Jurisdiction Protecting Categorical Equality
IV. Jurisdiction in the Absence of Forum Selection (Tort)
V. Jurisdiction in the Absence of Forum Selection (Contract)
VI. Jurisdiction in the Absence of Forum Selection (Other)
VII. Limited Exclusive Jurisdiction Overriding Party Autonomy to Maintain Sovereignty
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