Tag Archive for: choice of court agreement

[Out Now] Lopez on Choice of Forum Clauses in Asia

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The Hart Series “Studies in Private International Law – Asia” continues to deliver outstanding volumes, the latest being authored by Lemuel D. Lopez (lecturer of Law at the Royal Melbourne Institute of Technology University), and titled “Choice of Forum Clauses in Asia”.

This marks the 13th volume in the series, which was launched only a few years ago in 2019, with many more volumes expected to follow.

The topic is of great significance, and this book provides a much-needed Asian perspective, shedding light on how forum selection clauses function within the region’s unique legal environment.

 

The book’s description reads as follows:

This book compares and explains the approaches taken by Asian courts when choice of forum clauses in international commercial contracts are challenged in litigation.
It examines key common law jurisdictions (Singapore, Hong Kong and Malaysia), civil law jurisdictions (China, Japan, and Indonesia), and hybrid jurisdictions (the Philippines).
With Asia’s ascent in cross-border trade and investment, alongside a corresponding increase in cross-border litigation, understanding how Asian courts address choice of forum clauses in international commercial contracts has never been more critical. Employing a comparative law method, the book identifies and explains the relief and remedies used by Asian courts in enforcing choice of forum clauses, analysing how their classification as either contractual or procedural in nature shapes judicial approaches. It further distinguishes choice of forum clauses from arbitration agreements and explores their interaction with other contractual provisions. Party autonomy – as the parties’ freedom to determine the contents of the choice of forum clause and the freedom to control the flow of litigation – is also critically scrutinised.

Furthermore, the book investigates the factors courts consider in resolving key choice of forum clause issues (ie, enforceability; specific relief to be granted; existence, validity, interpretation of choice of forum clauses; role of mandatory rules, public policy, and international interests) and explores the prospects for future development of this area of law in Asia.

Crucially, the book highlights the unique approaches of Asian courts, while underscoring the differences and similarities among common law, civil law, and hybrid jurisdictions.

 

Table of Contents

1. Introduction
2. The Nature of Choice-of-Forum Clauses
3. Party Autonomy and Choice-of-Forum Clauses
4. The Enforcement of Choice-of-Forum Clauses: Singapore, Hong Kong, Malaysia, Philippines
5. The Factors Considered in Granting Relief: Singapore, Hong Kong, Malaysia, Philippines
6. Existence, Validity and Interpretation: Singapore, Hong Kong, Malaysia, Philippines
7. Mandatory Rules, Public Policy and International Interests: Singapore, Hong Kong, Malaysia, Philippines
8. Choice of Forum Clauses in Asian Civil Law Countries: China, Indonesia and Japan
9. Conclusions

Anti-Suit Injunctions and Dispute Resolution Clauses

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By Adeline Chong, Singapore Management University

  1. Introduction

In two decisions decided within a fortnight of each other, the Singapore Court of Appeal considered anti-suit injunctions pursued to restrain proceedings allegedly brought in breach of arbitration agreements. The first case, Asiana Airlines, Inc v Gate Gourmet Korea Co, Ltd (‘Asiana Airlines’)[1] dealt with whether A could rely on an arbitration agreement between A and B to restrain B’s proceedings against C, a third party. The second case, COSCO Shipping Specialized Carriers Co, Ltd v PT OKI Pulp & Paper Mills (‘COSCO Shipping’)[2] considered whether an arbitration agreement covered a tortious claim. To put it in another way, Asiana Airlines mainly concerned the ‘party scope’ of an arbitration agreement while COSCO Shipping concerned the ‘subject matter’ scope of an arbitration agreement.[3] Where the anti-suit application is to restrain foreign proceedings brought in breach of an arbitration or choice of court agreement, ordinarily it would be granted unless ‘strong cause’ is shown by the respondent.[4] This provides an easier path for the anti-suit claimant compared to the alternative requirement of establishing that the foreign proceedings are vexatious or oppressive in nature. Read more

China’s New Civil Procedure Law and the Hague Choice of Court Convention: One Step Forward, Two Steps Back?

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By Sophia Tang, Wuhan University

 

China’s New Civil Procedure Law adopted in 2023 and taking effect from 1 Jan 2024 introduces significant changes to the previous civil procedure law regarding cross-border litigation. One of the key changes pertains to choice of court agreements. In the past, Chinese law on choice of court agreements has been criticized for being outdated and inconsistent with international common practice, particularly because it requires choice of court clauses to be in writing and mandates that the chosen court must have “practical connections” with the dispute. After China signed the Hague Choice of Court Convention, there was hope that China might reform its domestic law to align with the Hague Convention’s terms and eventually ratify the Convention.

 

The New Civil Procedure Law retains the old provision on choice of court agreements, stating that parties can choose a court with practical connections to the dispute in writing (Article 35). This provision is included in the chapter dealing with jurisdiction in domestic cases, but traditionally, Chinese courts have applied the same requirements to choice of court clauses in cross-border cases.

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The Bahraini Supreme Court on Choice of Court Agreements, Bases of Jurisdiction and… Forum non Conveniens!

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I. Introduction:

In a previous post on this blog, I reported a decision rendered by the Bahrain High Court in which the court refused to enforce a choice of court agreement in favour of English courts. The refusal was based on the grounds that the case was brought against a Bahraini defendant and that rules of international jurisdiction are mandatory. The Bahraini Supreme Court’s decision reported here is a subsequent development on the same case. The ruling is significant for many reasons. In a methodical manner, the Supreme Court identified the foundational justifications for the jurisdictional rules applied in Bahrain. Moreover, it clarified the role and effect of choice of court agreements, particularly their derogative effect. Finally, and somehow surprisingly, the Court supported its position by invoking to “the doctrine of forum non conveniens”, explicitly mentioned in its decision. Read more