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The Legal Effect Given to a Jurisdiction Agreement By the Courts in the EU Law and Common Law

Yetki Sözleşmelerine Avrupa Birliği Hukuku ve Anglo Sakson Hukuku Mahkemelerince Verilen Hukuki Etki

Selin GÖK

Advance selection of forum by jurisdiction agreements not only provides high degree of legal certainty and predictability for the parties but also benefits of procedural economy by precluding disputes over the litigation place Moreover, the reflection of the interests of the parties comes into existence with jurisdiction agreements deriving from the principle of party autonomy. However, those selections of parties are not always respected by the courts. In this essay, it will attempted to evaluate the scope and enforceability of jurisdiction agreements, the respect given by the courts to such agreements, the results of breach under Brussels Regime and Common law.

Jurisdiction Agreements, Brussels I, Common Law

argı yerinin yetki sözleşmesi ile önceden belirlenmesi hem taraflar için yüksek bir derecede hukuki kesinlik ve tahmin edilebilirlik sağlamakta hem de yeni ve gereksiz davalar oluşmasını engelleyerek usul ekonomisine katkı sağlamaktadır. Bununla beraber, sözleşme serbestisi ilkesinden doğan tarafların iradelerinin bir yansıması yetki sözleşmeleri ile hayat bulabilmektedir. Ancak, tarafların söz konusu seçimlerine mahkemeler tarafından her zaman itibar edilmeyebilir. Bu çalışmada, Brüksel rejimi ve Anglo Sakson hukuk sistemi altında yetki sözleşmelerinin kapsamı ve uygulanabilirliği, mahkemelerin bu sözleşmelere itibarının sınırları ve münhasır yetki sözleşmelerinin ihlalinin sonuçları ele alınacak ve irdelenecektir.

Yetki Sözleşmesi, Brussels I, Brüksel Rejimi, Anglo Sakson Hukuk Sistemi

Introduction

Advance selection of forum by jurisdiction agreements not only provides high degree of legal certainty and predictability for the parties but also benefits of procedural economy by precluding disputes over the litigation place.1 Moreover, the reflection of the interests of the parties comes into existence with jurisdiction agreements deriving from the principle of party autonomy. Recital 14 to the preamble of the Council Regulation (EC) No 44/2001 of 22 December 2001 on Jurisdiction and Recognition and Enforcement of Judgements in Civil and Commercial Matters2 (Brussels I) emphasizes this principle by stating that “subject to the exclusive grounds of jurisdiction, the autonomy of private parties must be respected.”3 Enforceability of jurisdiction agreements refers to what extent the effect of the party autonomy should be given to a valid agreement by the courts in relation to countries’ policies.4 Jurisdiction agreements concluded between parties, one or more of whom is domiciled in a Member State and the jurisdiction is conferred on the courts of a Member State are governed by Brussels I as per Article 23(1) of the Regulation. In addition to European Union (EU) legislation, the second system governing jurisdiction agreements in the United Kingdom (UK) is the common law. Since Brussels I only address the jurisdiction agreements in favour of the Member State courts, common law would be applicable for the jurisdiction agreements which lie beyond the scope of Brussels I according to Article 4(1). The purpose of this paper is to critically evaluate the legal effect given to a jurisdiction agreement by the courts in the EU law and common law. Therefore, the validity of jurisdiction agreements is not in the scope of this study and it will be assumed that all the jurisdiction agreements in this study fulfil all the necessary formal requirements under Article 23 of Brussels I. This paper begins by critically evaluating the enforceability of clauses agreeing to a jurisdiction, the extent of the respect given by the courts to such agreements and the consequences of breach of exclusive jurisdiction agreements under Brussels Regime. It will then go on to consider the subject from the common law point of view.

Before examining the subject it shall be significant to provide the definitions of exclusive and non-exclusive jurisdiction clauses. In a non-exclusive jurisdiction clause, the parties choose a specific court which would not otherwise have jurisdiction. Either of the parties have the right to sue in another jurisdiction since there is no contractual obligation to commence proceedings in the chosen forum.5 In contrast, an exclusive jurisdiction clause excludes the jurisdiction of any other courts apart from the chosen one which alone determined to have jurisdiction.6

I. Enforceability of jurisdiction agreements within the scope of Brussels I

It is argued that the jurisdiction clauses are not completely effective on the ground that they are not consistently enforced under the present legal framework of Brussels I.7 It should be noted that in consequence of the alteration proposal made by the European Commission, Regulation (EU) No 1215/2012 of the European Parliament and of the Council Of 12 December 2012 on Jurisdiction and The Recognition and Enforcement of Judgments in Civil and Commercial Matters (recast) (Brussels I Recast) has been published in the Official Journal8 to enter into force at 10 January 2015 and to replace its predecessor Brussels I. Article 25 of Brussels I Recast ousts the domicile requirement under Article 23 of the Brussels I and provides that all jurisdiction agreements in which the parties have chosen the courts of a Member State shall be governed regardless of the domiciles of the parties.