'Contracting out': forum statutes, public policy and the effectiveness of foreign exclusive jurisdiction clauses

Thesis

It is increasingly common to see references to ‘policy’, ‘public policy’, or the ‘policy of the law’ as something distinct that can be discerned from the scope and purpose of a forum statute and invoked as a strong reason not to give effect to a foreign exclusive jurisdiction clause. Yet the legal significance of such policy, and how the task of identifying and applying it might be any different from interpreting and applying the statute, has not been clearly articulated by any English or Australian court. This thesis seeks to provide a coherent account of how a forum statute might limit the effectiveness of a foreign exclusive jurisdiction clause, with a view to better understanding the precise interaction between a forum statute and such an agreement. The thesis first proposes a typology of express statutory rules specifying when and how a foreign exclusive jurisdiction clause will be ineffective: ‘no contracting out’ rules, ‘no choice of court’ rules, qualitative rules and choice of law rules. The thesis then examines whether statutory policy might have an independent bearing on the exercise of the court’s remedial discretion. Following a review of cases where such policy has been invoked, it will be shown that almost all cases involved or ought to have involved the direct application of the forum statute. It will be contended there is limited scope for the court to have regard to the policy of a forum statute when exercising its remedial discretion, as such discretion only survives in the absence of express or implied legislative intent about the effectiveness of the foreign exclusive jurisdiction clause. It is therefore incumbent on courts to exercise caution when deploying the content of a forum statute or its underlying policy, and to be precise about when and how the forum statute is being used.

Authors: Cameron, L

• DOI: 10.5287/ora-kepz5opvd
• Type of award: MPhil
• Level of award: Masters
• Awarding institution: University of Oxford
• Language: English
• Keywords: exclusive jurisdiction clauses; statutory interpretation
• Subjects: Conflict of laws