The Party Autonomy Paradigm: European and Global Developments on Choice of Forum

Abstract

One of the pillars of international commercial litigation is party autonomy as it has developed over the past fifty years. In Europe, the Brussels regime established considerable freedom for parties to select the court that would have jurisdiction. The enforceability of choice of court agreements has gained ground in many countries worldwide, and the freedom to select the competent forum is exercised widely in commercial practice. Early in 2015, the new Brussels I-bis Regulation became applicable, altering the rules on choice of court. These amendments, particularly the exception to the lis pendens rule, aim at increasing the efficiency of choice of court agreements and at preventing torpedo litigation tactics. This year also marks the entry into force of the Hague Choice of Court Convention that had been adopted ten years earlier. The present paper explores the concept and development of the party autonomy paradigm from the perspective of different disciplines, and discusses the empirical evidence available on the use of party autonomy in commercial practice. It also examines the main changes brought about by the Brussels I recast and the entry into force of the Hague Choice of Court Convention, and analyses these against the background of the party autonomy paradigm, as well as their contribution to effective litigation.