ARTICLE: Prof. Basedow on "Exclusive Choice-of-Court Agreements as a Derogation from Imperative Norms"

Abstract:

By an exclusive choice-of-court agreement the parties to a contract may avoid the imperative provisions of a country whose courts would have jurisdiction in the absence of such an agreement. A comparative survey shows that the reactions of the deselected courts differ considerably in European countries. While some courts accept their deselection, others invoke the overriding mandatory character of the provisions they would have enforced in order to disregard the choice-of-court agreement. The article discusses the proper approach under the recast version of the Brussels I Regulation, under other emerging international rules and under national law. It distinguishes the deselection of a forum from the deselection of a national law and advocates the recognition of forum selection clauses even where they lead the non-application of mandatory laws of the deselected forum.

Prof Jürgen Basedow : 

Director of Max Planck Institute for Comparative and International Private Law

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