Enforceability of Jurisdiction Arbitration Clauses

Extract

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Enforceability of Jurisdiction Arbitration Clauses

Talk by Simon Salzedo of Brick Court Chambers given to Pinsent Curtis Biddle on 18th September 2002

Introductory remarks

1. The enforceability of jurisdiction and arbitration clauses is a very wide area. In the space and time available, it is not possible to cover many subtleties and exceptions to the rules stated. This is intended to be a crib to the basic rules and some recent case law, but not a text of the whole field.1

2. The effectiveness of a jurisdiction or arbitration clause may well depend on the view taken of it by any court before which it comes for decision. In an ideal world, no such clause would be drafted or agreed without advice being taken in each jurisdiction where the clause may be tested. This talk is confined to the approach which the English court will take when it is applying English law.

3. Without an agreement as to forum, in any contract with international reach, there will be scope for expensive disputes as to jurisdiction. As well as being expensive, the dispute may not be resolved the right way for any given client. There may be more at stake than just a convenient location and a well-mannered judge. For example, different courts may apply different time bars.

4. Many such disputes can be forestalled by having a clear jurisdiction or arbitration clause. Respectable jurisdictions all over the world recognise these clauses and regularly give effect to them.

Definitions

5. An exclusive jurisdiction cl...

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