When Choice of Forum clauses in international commercial contracts are challenged: key lessons from Asian jurisdictions
AuthorLopez, Lemuel Didulo
AffiliationMelbourne Law School
Document TypePhD thesis
Access StatusThis item is embargoed and will be available on 2021-10-31. This item is currently available to University of Melbourne staff and students only, login required.
© 2019 Lemuel Didulo Lopez
While Asia leads the world in cross-border trade and investments, no comparative study exists on the approaches of Asian courts to Choice-of-Forum clauses in international commercial contracts. This thesis fills this important gap by seeking to explore, identify, compare and explain the approaches of courts in Singapore, Hong Kong, Malaysia and the Philippines when Choice-of-Forum clauses in international commercial contracts are challenged. Employing a comparative law method, this thesis argues that the manner courts characterise Choice-of-Forum clauses, party autonomy, procedure, factors considered during enforcement, choice of law process, state and international interests are the factors which determine how courts decide cases and issues. The key lessons gathered in this thesis highlight the need for parties to consider the direct and indirect effects in drafting their Choice-of-Forum clauses, the need for courts to be predicable, reliable and coherent in their analysis, the importance of maintaining court discretion, the need for procedural and legislative reforms, and the existence of a conducive environment in Asia for strengthening laws on party autonomy and for the accession of Asian countries to the Choice-of-Court Convention.
Keywordsprivate international law; conflict of laws; civil law and procedure; comparative law; international law; international contracts; choice of forum clause; jurisdiction agreement; choice of court; cross border litigation; Asia; Singapore; Hong Kong; Malaysia; Philippines; party autonomy; forum non conveniens
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