Series Editor's Preface

vii

Acknowledgements

ix

Table of Cases

xvii

Table of Legislation, International Conventions, Official Papers and Policy Documents

xxvii

1.

Introduction

1

I.

Point of Departure

1

II.

Multilateral Private International Law Rules and the Nature and Enforcement of Choice of Court Agreements

2

III.

Contributions to Knowledge

11

2.

Private International Law, Party Autonomy and the English 'Dispute Resolution' Paradigm

14

I.

'Public' Role and Function of Private International Law

14

II.

Private International Law Norms as Secondary Rules for the Allocation of Regulatory Authority and the Separation of Functions within Choice of Court Agreements

21

III.

Emerging Third Paradigm of Jurisdiction and the Quest for a More Comprehensive Understanding of Party Autonomy

25

IV.

Emerging Paradigm of Party Autonomy and the Continued Viability of Private Law Remedies for Breach of Choice of Court Agreements

29

V.

Emerging Paradigm of Party Autonomy and the Proposed Reorganisation of Private International Law Rules on the Basis of a Systematic Distinction between Agreements and Non-agreements

34

VI.

Conclusion

36

3.

Analogy between Arbitration Agreements and Choice of Court Agreements: The Technique of Severability and Whether the Contractualisation Phenomenon Distorts the Fundamental Nature and Effects of Choice of Court Agreements?

37

I.

Introduction

37

II.

Severability in Dispute Resolution Agreements

38

III.

Interim Conclusion

41

IV.

Deconstructing the Arbitration Agreement Analogy

42

V.

Conclusion

52

4.

Private Law or Public Law? An Assessment of the Fundamental Juridical Nature and Classification of Choice of Court Agreements

54

I.

Fundamental Juridical Nature and Classification of Choice of Court Agreements

54

A.

Can a Non-Exclusive Choice of Court Agreement be Breached?

57

B.

Interim Conclusion

60

II.

Hybrid Jurisdiction-Arbitration Agreements

60

III.

Asymmetric or Unilateral Choice of Court Agreements

62

A.

Effectiveness of Asymmetric Jurisdiction Agreements and Article 25 of the Recast Regulation

66

i.

Validity

67

ii.

Certainty

70

iii.

Form

70

iv.

Fairness

72

v.

Interim Conclusion

73

B.

Effectiveness of Asymmetric Choice of Court Agreements and Article 23 of the Brussels I Regulation

75

C.

Asymmetric Agreements Subject to National Law

76

IV.

Fundamental Juridical Nature and Classification of Choice of Court Agreements under the Brussels I Regulation (Recast)

76

V.

Conclusion

82

5.

'Dispute Resolution' Epitomised: The Damages Remedy for Breach of Choice of Court Agreements

84

I.

Introduction

84

II.

Preliminary Issue: Practical Solutions for Enforcing English Exclusive Choice of Court Agreements by Drafting Clauses to Guarantee the Secondary Enforcement of Choice of Court Agreements

84

A.

Undertakings not to Breach the Choice of Court Agreement

85

B.

Indemnity Clauses and Liquidated Damages Clauses Enforcing the Choice of Court Agreement

86

III.

Legal Basis of the Claim for Damages for Breach of a Choice of Court Agreement

90

A.

Introduction

90

B.

Jurisdiction to Enforce Breach of a Choice of Court Agreement: Can an Anti-suit Injunction or Damages Remedy be Awarded for Breach of a Foreign (Non-English) Choice of Court Agreement?

91

IV.

Contract

98

A.

Applicable Law of the Contractual Claim for Damages

101

V.

Tort

104

A.

Applicable Law of the Tortious Claim for Damages

109

VI.

Restitution

114

A.

Applicable Law of a Restitutionary Claim

117

VII.

Damages in Equity

120

A.

Does a Substantive Equitable Right not to be Sued Abroad Vexatiously Exist?

120

B.

Choice of Law and Equity

122

C.

Equitable Damages

123

VIII.

Damages in Lieu of an Injunction: Section 50 of the Senior Courts Act 1981

126

IX.

Recognition and Enforcement of the English Judgment Awarding Damages for Breach of a Choice of Court Agreement

128

A.

Introduction

128

B.

Recognition and Enforcement under the Brussels I Regulation and the Recast Regulation

129

C.

Recognition and Enforcement under National Private International Law Rules

131

6.

Overview of the Case Law on the Damages Remedy for Breach of Exclusive Choice of Court Agreements: Firmly Entrenched or a Nascent Remedy in Need of Development?

135

I.

English Court of Appeal Validates the Damages Remedy for Breach of English Exclusive Choice of Court Agreements: The Principle of Mutual Trust and Interference with the Effectiveness of the Multilateral Jurisdiction and Judgments Order of the Brussels I Regulation?

142

II.

Recovering Damages for the Tort of Inducing Breach of a Choice of Court Agreement against a Claimant's Legal Advisers: The English Court of Appeal Adjudicates on whether England is the Place where the Economic Loss Occurred under Article 5(3) of the Brussels I Regulation?

152

7.

Assessing the Damages Remedy for Breach of Choice of Court Agreements

159

I.

Arguments in Favour of the Damages Remedy for Breach of Choice of Court Agreements

159

A.

Recognising a General Right to Claim Damages is the Approach that Best Accords with Existing English Common Law Domestic Contract Law Principles

159

B.

Damages Remedy Allows the Court to Preserve Certainty, Maintain the Sanctity of the Contractual Bargain and Control Forum Shopping

160

C.

Damages Remedy Provides the Court with another Tool with which to Control International Litigation

163

D.

Damages Remedy Allows the Court to Give Effect to Public Policy Considerations while Reconciling the Private Interests of the Contracting Parties

164

II.

Arguments against the Damages Remedy for Breach of Choice of Court Agreements

165

A.

Choice of Court Agreement is a Special Contractual Term, the Breach of which Does not Give Rise to a Right to Damages

165

B.

Courts are not Bound by Choice of Court Agreements on Ordinary Principles of Privity of Contract

167

C.

Where the Court Refuses to Enforce the Choice of Court Agreement, it would be Inconsistent for the Court to then Award Damages for its Breach

167

D.

Right to Damages would be too Difficult and Inefficacious, if not Impossible, to Quantify and should accordingly be Disallowed on this Basis

168

E.

Right to Damages Would Infringe on International Comity to an Unacceptable Extent

170

III.

Principle of Comity and the Damages Remedy

171

A.

Introduction

171

B.

Two Conceptions of Comity

172

C.

Comity and the Enforcement of Exclusive Choice of Court Agreements by the English Courts

172

D.

Two Fundamental Confusions

175

E.

Conclusions

177

IV.

Comparison of the Damages Remedy with Contractual Anti-suit Injunctions: Implications for Comity and the Relative Effectiveness of Each Remedy

180

8.

In-depth Examination of the Damages Remedy for Breach of Exclusive Choice of Court Agreements under the English Common Law Jurisdictional Regime

183

I.

Extended Doctrine of Res Judicata based on Abuse of Process as a Control Mechanism to Limit Claims for Damages for Breach of Choice of Court Agreements in the English Courts?

191

II.

Conclusion

195

9.

Damages Remedy and the Brussels I Regime

198

I.

Viability of the Damages Remedy under the Brussels I Regulation: Will the Backdoor Approach of the English Common Law be Permitted?

198

A.

Conclusion

205

II.

Choice of Court Agreements and the Brussels I Regulation (Recast)

206

A.

Conclusion

220

III.

Scope for Pre-emptive Proceedings and the Damages Remedy for Breach of Choice of Court Agreements in the Brussels I Regulation (Recast): Rendered Redundant or Bequeathed a New Lease of Life?

222

A.

Introduction

222

B.

Pre-emptive Proceedings in a Lugano Convention Contracting State

225

C.

Pre-emptive Proceedings in an EU Member State under the Brussels I Regulation (Recast)

227

D.

Pre-emptive Proceedings and Exclusive Jurisdiction

234

10.

Hague Convention on Choice of Court Agreements: Qualified Mutual Trust and the Scope for Remedies for Breach of Exclusive Choice of Court Agreements

235

I.

Introduction

235

II.

Scope of the Hague Convention

238

III.

Defining Characteristics of the Hague Convention

238

IV.

Anti-suit Injunctions Enforcing Exclusive Choice of Court Agreements and Parallel Proceedings under the Hague Convention

240

V.

Exclusive Choice of Court Agreements and Parallel Proceedings in intra-EU Hague Convention Cases

246

VI.

Conclusions

252

11.

English Choice of Court Agreements in the Post-Referendum Legal Environment: What Lies Ahead?

253

I.

Introduction

253

II.

Aftermath of the Brussels I Recast Regulation

253

III.

EU Enforceability: Practical Solutions

256

IV.

EU Enforceability: The Hague Convention on Choice of Court Agreements

257

V.

Conclusions

260

12.

Conclusions and Contributions to Knowledge

262

Bibliography

271

Index

293