Asymmetric arbitration and jurisdiction agreements have recently sparked debate among legal scholars and courts in many jurisdictions worldwide. Adopting a holistic approach, this book examines their enforceability in leading civil law and common law jurisdictions (France, Germany, UK, US) and beyond, under the New York Arbitration Convention, the European Arbitration Convention, the Brussels Ibis Regulation and the Lugano Convention, while also considering the case law of the European Court of Justice and the European Court of Human Rights.

Party autonomy is the starting point in any discussion of both choice of court clauses (in transnational litigation) and arbitration clauses (in international arbitration). Parties are in principle free to determine the forum, typically the exclusive forum. But does party autonomy allow parties to enforce asymmetric choice of forum clauses? Several legal systems and commentators favor solutions that lie at an extreme. For some, party autonomy requires respect for such clauses as drafted, at least if freely and fairly agreed upon, while for others, equality and fundamental fairness demand that no such provisions be enforced. This book skillfully navigates between these extremes, demonstrating that neither of these values need necessarily override the other. If we value both party autonomy and elemental fairness, then it behooves us to find a middle ground. That precisely is what Richard Schmidt both undertakes and achieves in this masterful book. - Prof. George A. Bermann, Columbia University School of Law, USA

This book offers a compelling analysis of asymmetric jurisdiction and arbitration agreements in a broad comparative context. For the arbitration community, this publication is especially important, as a valid arbitration agreement is a cornerstone of arbitration. Yet the enforceability of asymmetric choice of forum agreements remains a pressing and practical concern rather than a purely academic debate, considering the diverging international case law. Confronting this inconsistency, Schmidt undertakes an in-depth comparative study drawing on EU legislation and jurisprudence, common law and civil law traditions, and relevant supranational regulations. This volume makes a significant and timely contribution to the international arbitration literature and will be an interesting read for scholars and practitioners alike. - Dr. hab. Beata Gessel-Kalinowska vel Kalisz, Prof. Institute of Law Studies of the Polish Academy of Sciences

Examines asymmetric jurisdiction and arbitration agreements Deals with a hot issue in the field of international dispute resolution Offers a comparative approach and compares civil law and continental jurisdictions

Autorentext

Richard Schmidt is founding and managing partner of SMARTLEGAL Schmidt & Partners, a boutique law firm in Budapest (Hungary) focusing on commercial arbitration and litigation in international and domestic matters. He acted as counsel and arbitrator in ad hoc and institutional arbitrations, including under the ICC, UNCTIRAL, HKIAC rules and in front of the Hungarian Commercial Arbitration Court, and in complex domestic and international commercial litigations. Richard is enrolled as arbitrator at the Hungarian Commercial Arbitration Court and he is listed by the Vienna International Arbitration Centre. Richard is graduated from the Pázmány Péter Catholic University (PPCU) (Budapest, Hungary), acquired his LL.M degree at the Université Catholiuqe de Louvain (Belgium), and has been awarded a PhD by his Alma mater in Budapest. Believing that legal theory and practice are indivisible, besides being a university lecturer at PPCU, Richard is author and editor of several online and offline publications including more books on international arbitration and litigation.

Inhalt

Introduction.- Choice of Forum Agreements.- The Freedom of International Choice of Forum.- The Limits of International Choice of Forum.- Asymmetric Choice of Forum Clauses in Practice.- Analysis of Asymmetric Choice of Forum Agreements.- Certainty.- Contract Law Limits.- Public Policy.- Summary.