Excuria Admin

[The authors are Saanya Vashishtha and Shreya Tiwari ] Blaise Pascal famously quoted that “jurisdiction is not given for the sake of the judge, but for that of the litigant”. The concept of party autonomy has become fundamental in the realm of cross-border business transactions within the global world as it lays the ethos of private international law. The current trends indicate that party autonomy will become a universal and incontestable principle that is followed as a rule of law in almost all jurisdictions. Choice of law provides parties certain freedom for determining the jurisdiction of courts that are competent to adjudicate upon the issue at hand. PRIVATE INTERNATIONAL LAW- INSIGHT INTO FREEDOM IN CHOICE OF LAW The choice of law or the governing clause is of prime importance as it allows two contracting parties to choose between the applicable laws as per their convenience. It is pertinent to note that the choice of law is only substantive in nature and not merely procedural law. Forum selection provisions or jurisdiction clauses are contractual agreement that designates the court and location where the parties would like to have their legal dispute decided.[1] Ultimately forum selection clauses provide contracting parties with personal jurisdiction within courts having appropriate jurisdiction over the matter at hand. Adjudicating courts consider both choices of forum and law as essential criteria while deciding upon appropriate jurisdiction. The point of conflict occurs in private international law when forum selection intersects with the choice of law clauses. The recent phenomenon that has been observed is to apply the law chosen by parties regarding the choice of law for adjudication. In response to the same noted scholars have stated this recent approach to be wrong and instead argue that courts should apply forum law in these interpretational clauses. The six major justifications for applying the parties’ chosen law while interpreting a forum selection clause are given below- Forum selection clauses generally restrain the contracting parties to a certain jurisdiction while the defendant will try to step out of these limitations. In response to this, there will be questions raised pertaining primarily to the interpretation of the forum clause as well as the validity and enforceability of the same. The plaintiff’s focus remains on taking the case to a different court than the one decided upon while challenging the validity of the forum selection clause itself. Thus, the right approach concerning these situations in the international law arena would be to scrutinize the validity of forum selection[3] as well as the choice of law clause and then interpret as well as predict the effects of it on the matter at hand. The choice of law clauses in the European Union is governed majorly by two regulations- Rome I and Rome II. The Brussels regulation focuses more on the choice of jurisdiction rather than law and largely remains silent on the matter of choice of law. The 1980 Rome Convention has been replaced by the Rome I Regulation, 2008[4] which governs the choice of law pertaining to contractual obligations within the arena of the European Union (EU). The Regulation governs both civil and commercial matters. Article 3 of the EU Regulation lays the basic structure governing party autonomy while deciding on the applicable law. The specification of the governing law in the contract itself helps the contracting parties to evade disagreements easily and therefore save both time and cost during an issue at hand.[5] Rome I Regulation postulates that parties have the autonomy to decide their own governing law. Article 3(1) of Rome I states that “a contract shall be governed by the law chosen by the parties”.[6] This is in stark contrast to Article 3 of the Rome Convention which had left the choice of applicable law in a grey area by merely stating that the choice must have been established with “reasonable certainty”. Article 3(1) covers this arbitrary area by stating that even when the parties have not made an express provision regarding their choice of law, it can be deciphered via the terms of the contract or facts of the case. It has opened up a lot of space for judicial scrutiny and in its essence empowered parties with the freedom to not only choose but also determine the choice of law in courts. However, another point of contention that arises is how international law as well as forums decide the consensus reached by both the contracting parties on the choice of law and settle disputes when there are conflicting opinions. The case of Ferguson Shipbuilders Ltd. v Voith[7] had held that the fulfilment of conditions in Article 3 of the Regulation leads to the conclusion that choice of law had been included in the contract under the general conditions specified by one of the parties. This case was again in dispute by the judgement provided by the courts in the case of Iran Continental Shelf Oil Company v IRI International Corporation[8]. In this case both the parties had advanced the contract while assuming their conditions to be superior and ultimately ended up having inconsistent clauses concerning the choice of law. It had been held that neither of the parties could have been supposed to accept the contract and an assumption regarding the same would be violative of the natural principles of justice by being unfair to one of them. The current stance rests on the principle that both contracting parties must agree to the choice of law being mandated while resting on the same ground with context to the contract. It is pertinent to note that all these case precedents must be applied while keeping in mind Recital 11 of the Rome I Regulation which reiterates that the parties’ freedom in choosing the applicable law must be the topmost priority in matters of contractual obligations. Furthermore, Recital 12 of the same regulation specifies that the reasoning of the court while deciding the choice of law between two parties cannot be a matter to be contested upon. In order to

[The authors are Ifrah Barge, Saanya Vashishtha and Shreya Tiwari] ABSTRACT Forum law shopping is- an element of identity within the realm of international commercial law and a carrier of diverse connotations for the concept of jurisdiction and enforceability of cross-border business contracts. Forum shopping governs the regal crown of choosing the court or jurisdiction when one or more courts have jurisdiction over the dispute at hand. The clash and tensions arise when one of the parties secures the upper hand or favourable position over the other. The concept of forum shopping has led to immense debate and rhetorical speeches concerning the intersection of the delivery of justice and the advantageous position that one party acquires in a legal dispute. The fundamental problem occurs when the most favourable legal jurisdiction is not the one best suited to the matter. The plaintiff when offered a choice of jurisdiction will seek to extract the optimum advantage out of the permissible laws and use it to fulfil his legal purposes. However, the sole burden of this law shopping does not come on the plaintiff as the initiation of this process is part of the legal machinery itself. At such a crucial juncture tension has escalated as legal academicians and international law experts have become wary of the practice of forum shopping and instead consider it as an evil practice. This paper dwells on the global impact and stance of forum law shopping as well as the constantly evolving legal demography and statutory changes that have mystified future pathways. Further, it elaborates on a comparative analysis of the trends in forum law shopping within different jurisdictions and the subsequent challenges that the regime poses to uniformity in justice. Keywords– forum shopping, international commercial law, demography, uniformity, justice AN OVERVIEW OF FORUM LAW SHOPPING Forum law shopping allows the offended party to choose the legal jurisdiction that it finds the most suitable in comparison to all the available jurisdictions. The concept is dependent on two prior conditions- ty of choice is a necessary element for forum shopping to happen. In simpler language more than one court should be available and competent to deal with the legal dispute.  Forum shopping occurs in two ways as mentioned below- The plaintiff always has an advantaged position in forum law shopping as he has the right to choose the court in which the case will be heard and he is considered to be the “master of the complaint”[1]. The plaintiff gets to exercise control over the procedural guidelines and substantive law which will govern the dispute at hand. The choice of forum is dependent on several factors which are taken into consideration by the plaintiff. One of the factors that the plaintiff looks for while filing a suit is the value of the claim, that is, the plaintiff shall after rationally analysing look to file a suit for claim in courts which can offer them the highest value for their claim reducing the cost of litigation, in accordance with the substantive and procedural rules followed in that courts’ jurisdiction. An example of this could be the United States wherein the costs of suing for the litigant are comparatively less and the damages accorded by the courts are relatively greater. Secondly, the plaintiff also opts for forum shopping in case of transnational litigation in cases where the plaintiff expects higher court access decisions. The court access decision is the decision made by the court in order to determine whether the suit brought before the court by the plaintiff should be allowed to proceed.[2] Thus, a plaintiff shall forum shop in order to nullify the option of losing money due to the rejection of court access. The plaintiff also acts with care while deciding for choice-of-law decisions. The choice-of-law decisions are the decisions wherein the court decides whether it has to apply the substantive law of its own country or the substantive law of a foreign country. This becomes pivotal as different legal systems have different rules and regulations with different degrees of harshness. Thus, the plaintiff shall want to forum shop the choice-of-law decisions which would allow them to make a stronger argument or claim for themselves which would further lead to them being in an advantageous position and winning the award. The defendant does not exercise sole discretion over choosing the forum of law but he is in exceptional circumstances allowed to engage in this practice. The principle of “forum non conveniens” gives power to the courts for dismissing a case when another legal forum has better competency to deal with the case.[3] Furthermore, jurisdictions can be challenged on the subject matter, territorial, or personal reasoning grounds. As a final option, the defendant can convert his position from the current one to being a plaintiff through a declaratory judgment when he sues the other party. However, the relief provided to the defendant is quite limited and always positions him in an inferior status compared to the plaintiff. FORUM SHOPPING IN THE EUROPEAN CONTEXT The European law flows from the Brussels Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters from 1968 and the Lugano Convention on Jurisdiction Enforcement of Judgements in Civil and Commercial which is based on the Latin legal maxim “actor sequitur forum rei”.[4] The fundamental ethos behind this is that the plaintiff must follow the forum of the thing in dispute. The regulation of jurisdictional power in commercial matters between parties established or residing in the EU is governed by the Brussels I Regulation. [5]This European regulation only governs cases where the complaint or claim is filed post 10th January 2015. Article 2, 3, and 4 of the Brussels I Regulations [6]establishes the general rule that the legal proceeding is to be made in the state where the defendant has his domicile in the EU (any member state). This is regardless of the nationality of the parties to the lawsuit, so in case the plaintiff is domiciled in a third state, the