The Agreement Conferring Jurisdiction

The provisions relating to the forum agreements take precedence over the other provisions of the brussels regulation, with the exception of: exclusive jurisdiction granted to a particular jurisdiction under Article 24.B (for example, certain land disputes); Submission to the section 26 court; and the specific rules on employment, consumer contracts and insurance covered by Articles 10-23 (for more information on all these provisions, see assumptions iii to v). The Supreme Court recently ruled that the effectiveness of a jurisdictional agreement must be decided on the basis of Article 23 of the Regulation (now Article 25 of the EU Brussels-IA Regulation), since the applicability of the EU`s Brussels I regulation is indisputable. (1) This is a substantial change from the original Brussels regulation, which stipulated that any jurisdiction of a Member State other than the court before it should suspend its own proceedings until the status of the former, irrespective of the fact that the first appeal was brought in violation of an exclusive jurisdiction clause in favour of the latter. This rule was open to abuse; a party wishing to delay a judgment could go to court in another Member State, perhaps another, known for a more relaxed pace of justice, and the elected court would then have to wait for the first court to render it incompetent. This tactic, known as the “Italian torpedo”, is no longer available after the brussels regulation was overhauled. 3. If there is agreement on the application of one of the procedures covered by Article 287, paragraph 1 of the 1982 United Nations Convention on the Law of the Sea, the provisions of Part XV of this Convention relating to the chosen procedure would apply mutatis mutandis. In practice, problems sometimes arise when transactions are documented in a number of related agreements containing conflicting jurisdiction clauses. If the claim in question arises as part of a particular agreement, the Tribunal takes effect even if the jurisdiction clause in that agreement results in a fragmentation of the proceedings: cf. Sebastian Holdings Inc.

/Deutsche Bank AG [2010] EWCA Civ 998, which is taken into account here: collision clauses in complex financial transactions – other indications of the Court of Appeal. However, if the appeal involves a number of agreements, the court may consider the agreement “in the business centre of the transaction” to determine which jurisdiction clause should cover the dispute: see UBS Securities LLC/HSH Nordbank AG [2009] EWCA Civ 585, which is dealt with here: synthetic CDO in english courts: the Court of Appeal upholds the jurisdiction of New York. 3. Where voluntary dispute resolution measures are exhausted or no agreement is reached on the use of other bodies, such as the International Court of Justice or the International Tribunal for the Law of the Sea, one of the parties may seek binding arbitration. In accordance with Section 9 of Civil Procedure 1908 (`CPC`), all courts have jurisdiction over all civil actions, unless jurisdiction is expressly or implicitly excluded. In addition, Section 20 of the CPC provides that an action can be brought either where the defendant usually resides, operates or where part of the plea is under review. Section 20 makes it clear that more than one court may have jurisdiction over the appeal (Z.B. when part of the plea is formed in another location than if the defendant usually resides or operates).


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