Lloyd's Maritime and Commercial Law Quarterly
AGREEMENTS ON JURISDICTION AND CHOICE OF LAW: WHERE NEXT?
Jonathan Harris *
This article offers a critical analysis of Professor Briggs’s recent book on jurisdiction and choice of law clauses. Central to his analysis are arguments as to: (i) the separable nature of jurisdiction and choice of law clauses as dispute resolution provisions; (ii) the double life of such clauses as provisions which confer jurisdiction and determine which law should be applied, but also as enforceable private contractual obligations between the parties; and (iii) the distinction to be drawn between rules of private international law which apply by agreement of the parties and those which apply in default. In this article, the present writer suggests that the first of these propositions can largely be accepted, albeit that he questions the implications of such a conclusion. He also suggests that caution must be exercised in pursuing the second and third arguments too far and that the strictures of existing private international law rules are likely to inhibit the development of the remedy of damages for breaches of these clauses, especially where the second-guessing of the findings of courts of other Member States is involved.
1. Introduction
In Agreements on Jurisdiction and Choice of Law,1 Professor Briggs turns his attention to fundamental questions relating to the role of consent, agreement and the nature of the dispute resolution process. In the course of this excellent monograph, he considers the extent to which jurisdiction and choice of law clauses may be considered to be contractual terms capable of being breached, and the remedies that might be granted in respect of such breaches. This article offers a critical analysis of the book.
It is clear from the outset of the book that Briggs has several key arguments to make: one is to assert the pivotal roles of consent and of agreements in the conflict of laws; another is to suggest that private international law is essentially concerned with the resolution of disputes and that this is how both jurisdiction clauses and choice of law clause should be understood. He suggests that both types of clauses should be regarded as separable from the contract to which they relate, so that they are capable of surviving attacks on the validity of the contract itself. Above all, however, Briggs asserts the primacy of the pacta sunt servanda
2 principle. This has two consequences. The first is that
* Professor of International Commercial Law, University of Birmingham; Barrister, Serle Court, London.
1. AGREEMENTS ON JURISDICTION AND CHOICE OF LAW. Adrian Briggs, Professor of Private International Law, Fellow of St Edmund Hall, University of Oxford; Barrister, Blackstone Chambers. Oxford University Press, Oxford (2008) xlix and 542 pp, plus 30 pp Index. Hardback £145.
2. See the preface, ix.
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