International Commercial Agreement

1. Introduction

• Elements of  agreements
• Commercial agreement
• Indian Commercial Courts
• An agreement involving multiple Jurisdiction2. Consent  and private international law
• The general principle
• The role of consent in commercial law
• Consent or agreement, and the absence of consent or agreement
• Consent in the application of foreign law
• Consent in choice of law
• Consent in the recognition of foreign judgments
• Consent and the local jurisdiction of the court
• Consent and the subject-matter jurisdiction of the court
• European jurisdiction

1. Dispute resolution and Severability

• Basic contractual terms
• The  agreements for the resolution of disputes
• Agreements on jurisdiction
• The principle of Severability
• The obverse of Severability
• The agreement on the choice of law

1. Clauses, principles, and interpretation

• The range and varieties of jurisdiction clause
• Jurisdiction clauses: rights conferred and duties assumed
• Jurisdiction agreements as exemption clauses
• The scope of the duty; the ambit of the clause
• Service of suit clauses
• Combined arbitration and jurisdiction agreements
• Choice of law clauses
• One contract but several agreements
• The role of European law

1. Drafting agreements

• Contractual variation of the Brussels Regulation
• A specimen clause: elaborate version
• Explanation of contents: elaborate version
• A specimen clause: simple version
• Drafting by incorporation from other documents
• The meaning of words and the use of authority

1. Jurisdiction agreements: primary obligations

• Jurisdiction-blind enforcement
• Development of the anti-suit injunction
• Objections to enforcement by order of the English court
• Equitable maxims as a restriction on remedy
• The position of strangers to the contract
• Stays of English proceedings brought in breach of contract

1. Jurisdiction agreements: Brussels Regulation

• The context in which Article 23 is to operate
• The structure of Article 23
• What is an agreement for the purposes of Article 23?
• Unilateral or bilateral agreement
• Article 23: what writing ? whose writing?
• The parties to the ‘particular legal relationship’
• Article 23 and those who depart from the agreement
• Injunctions to enforce agreements about jurisdiction and litigation
• Turner v Grovit
• Jurisdiction agreements for the courts of non-Member States
  Conclusions

1. Jurisdiction agreements: secondary obligations

• The starting points of the common law
• Union Discount v Zoller and five cases which are less straightforward
  Other issues arising within the common law analysis
  i The cause of action
  ii The assessment of damages
  iii Where the nominated court is not in England
• Judgments from the courts of a Member State

1. Foreign Judgments

• Common law recognition
• Judgments from the court designated by a dispute resolution agreement
• Foreign judgments obtained in breach of jurisdiction agreement
• Overcoming foreign judgments obtained in breach of contract
• Recognition and enforcement under the Regulation
• The decision in De Wolf v Cox
• Recognition and enforcement at the margin of the Regulation
• International obligations binding courts; personal obligations binding parties

1. Agreements on the choice of law

• Contracts: where the existence of the contract is not in dispute
• Contracts: where the existence of the contract is in dispute
• Contracts: the law which governs the consequences of contractual invalidity
• Contracts: conclusions about the nature of choice of law for contracts
• Agreements of choice of law and claims in tort
• Choice of law and property rights

1. Effects of choice of law

• The common law and the proper law of a contract
• Choice of proper law: common intention or mutual agreement?
• Governing the contract and governing contractual litigation
• The consequence if the law identified for application is not applied
  i Breach of a choice of law
  ii Non-monetary responses
  iii Monetary remedies
  iv Subverting the contract as a tortious wrong
  v The Rome Convention
• Choices of law when not permitted

1. Agreements to resolve disputes by arbitration

• Nature of agreement
• Who will adjudicate ? Who decides who will adjudicate ?
• To what do the parties agree when they agree to arbitration ?
• The jurisdiction of the courts of the seat
• Foreign judgments in breach of an arbitration agreement: Brussels Regulation
  i Non-recognition of judgments
  ii Reversal of judgments
  iii Private rights and public duties
•  Brussels Regulation on Foreign proceedings in breach of agreement to arbitrate
• The New York Convention
• Damages for breach of the contract to proceed by way of arbitration

1. Conclusions
   The Hague Convention on Exclusive Choice of Court Agreements
   Private international law and party autonomy