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Rethinking Judicial Jurisdiction in Private International Law: Party Autonomy, Categorical Equality and Sovereignty

Rethinking Judicial Jurisdiction in Private International Law: Party Autonomy, Categorical Equality and Sovereignty

Author: Milana Karayanidi
Publisher: Hart Publishing
ISBN: 9781509954742

Published In: August 2021
Format: Paperback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Hardback Edition ISBN: 9781509924776

List Price: HKD 519.87

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This book explores the theory and practice of judicial jurisdiction within the field of private international law. It offers a revised look at values justifying the power of courts to hear and decide cross-border disputes, and demonstrates that a re-conceptualisation of jurisdiction is needed. Rather than deriving from territorial power of states, jurisdiction in civil and commercial cross-border matters ought to be driven by party autonomy. This autonomy can be limited by certain considerations of equality and critical state sovereign interests.

The book applies this normative view to the existing rules of jurisdiction in the European Union and the Russian Federation. These regimes are chosen due to their unique positions towards values in private international law and contrasting societal norms that generate and accommodate these values. Notwithstanding disparate cultural and political ideas, these regimes reveal a surprising level of consistency when it comes to enforcement of party autonomy. There is, nevertheless, room for improvement. The book demonstrates to scholars, policy makers and lawmakers that jurisdiction should be re-centred around the interests of private actors, and proposes ways to improve the current rules.

1. Introduction

2. Reconciliation of Values in Jurisdiction

I. The Big Picture

II. Summary of Jurisdiction Rules in the EU and Russia

PART I: PARTY AUTONOMY IN PRIVATE INTERNATIONAL LAW ON JURISDICTION

3. Autonomy as a Foundational Value for Jurisdiction

I. Introduction

II. Definition of and Justification for Autonomy

III. Autonomy as a Proper Foundation for Matters of Private International Law and Jurisdiction

IV. Sovereignty: Not a Starting Point for the Law on Jurisdiction

4. Autonomy in the Law on Jurisdiction: Harmony and Controversy

I. Linking Theory to Practice

II. Party Autonomy ex ante

III. Party Autonomy Bordering Other Issues

IV. Party Autonomy ex post

V. Conclusion

PART II: PARTY EQUALITY

5. Categorical Equality in the Law on Jurisdiction

I. Introduction

II. Equality Limiting Party Autonomy: Normative View

III. Critical Analysis of Positive Law on Protective Jurisdiction

IV. Conclusion

6. Jurisdiction in Tort and Contract in the Absence of Choice of Forum: Balance Exercise

I. Introduction

II. Jurisdiction in Torts: Interpretation and Justification

III. No Choice of Forum in Contract: Jurisdiction at the Place of Performance

IV. Conclusion

PART III: SOVEREIGNTY AND PARTY AUTONOMY

7. Sovereignty and Party Autonomy in Civil and Commercial Jurisdiction

I. Introduction

II. Extent of International Sovereignty in Private International Law

III. Home Sovereignty and its Limited Role in the Law on Jurisdiction

IV. Ultimate State Sovereignty: Public Interest

8. Sovereignty and Territoriality in the Law on Jurisdiction

I. Defining Domicile for the Purpose of Jurisdiction

II. State Sovereign Interests Overriding Party Autonomy to Protect the Integrity of the State

III. Conclusion

9. Overall Conclusions and Recommendations

I. Jurisdiction by Parties' Agreement ex ante

II. Jurisdiction by Parties' Agreement ex post

III. Jurisdiction Protecting Categorical Equality

IV. Jurisdiction in the Absence of Forum Selection (Tort)

V. Jurisdiction in the Absence of Forum Selection (Contract)

VI. Jurisdiction in the Absence of Forum Selection (Other)

VII. Limited Exclusive Jurisdiction Overriding Party Autonomy to Maintain Sovereignty

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