COLLIER

The most influential theory is the ‘territorial’ theory of law, propounded in the seventeenth
century by the Dutch jurist Huber (1636–94).4 He put forward three propositions, which
influenced later theorists. (1) The laws of each state have authority within its frontiers; they
obligate all its subjects there, but not beyond. (2) A state’s subjects must be taken to be all
those who are to be found within its frontiers, whether residing there permanently or merely
for a time. (3) Those who govern the state must act with comity so that the laws of another
state which have been applied within its frontiers maintain their force everywhere, so long as
no prejudice results to the power or rights of another sovereign or his citizens
COMITY
It is said that it is necessary to apply foreign laws in cases involving a foreign element
because not to do so would constitute a disregard of the sovereignty of another state within its
territory and thus show a lack of comity towards it.
The theory of vested rights
This derives from another of Huber’s statements, which he employs to justify the application
of foreign laws: ‘the laws of another state which have been applied within its frontiers
maintain their force everywhere’. The theory runs that justice demands that rights acquired in
one country must be recognised in other countries and be protected by recognition and
enforcement there.

Private International Law – 3 main qs:

 Which court is competent/ has jurisdiction to handle the matter? – conflict of laws
(private international law) between multiple courts have competency over these
matters.
** Just because a court has been seized, should it have jurisdiction? No. Because
the court may not have any real connection to the dispute. Without this real
connection, the decision may be ineffective.
** Savigny (father of private international law) said that every legal relationship
has a seat. Seat has the closest, connection/ legal relationship with the dispute.
***Even Sec-19 of CPC is derived from this concept because it says that the
jurisdiction of the court rests on the defendant’s residence + where cause of action
arises.
** This question includes questions of arbitration.

 Which country’s law is applicable?

** Why can’t we simply apply domestic law? Because in a legal relationship,
individuals behave according to the law they are accustomed and expected to be
governed by. Thus, (our) domestic law may be alien for another individual.
[REASON 1 FOR PRIVATE IL/ CONFLICT OF LAWS]
** Privatization has allowed parties to choose their own law. Arbitration is a direct
result of privatization.
** How does the court apply foreign law? Every court in the world is equipped to
apply any law from any world. It does this through assistance and experts from
that country.
  MOST IMP: What is the effectiveness of the court decision? (Enforceability)
[ENFORCEABILITY = REASON 2 FOR PRIVATE IL]
** China is one of the most difficult place to enforce foreign judgements. The rate
is less than 10%.

Every country which has liberalized trade, and has privatization as a result have had to confront these
questions because 1. There are too many cases in the court; 2. These cases are complex.

[FURTHER REASONS FOR PRIVATE IL]

- Advancement of private interests: Basically, private party rights need to be protected.

- To maintain certainty and flexibility.
Certainty: The parties must know in advance what laws they should be governed by.
Flexibility: As a result of privatization and in the interests of freedom of contracts,
individuals must be allowed to choose their own governing law.

However, this is subject to the respect for sovereignty of another country. For
example: private contracts entered for a drug transaction, if violates public policy/
morale of an affected country, then we cannot have complete respect for the private
contract and there must be a balancing game that has to be played to balance different
country’s morals.
- To maintain comity: to maintain courtesy with another country to respect the friendly
relations with other countries.
- Vested Right: the belief that every law will have enforceability beyond its borders.
Public policy, morale and laws central to a nation are believed to have enforceability
beyond its national borders. (Taprogge Gesellschaft Mbh vs Iaec India Ltd. on 15
October, 1987)
- Avoiding conflicts of multiple legal systems: you do not want to have multiple courts
adjudicating on the same matter.
- There has to be openness in applying foreign law.
- Concept of giving equality to domestic law and foreign law = Universalism [Different
from National Treatment. Universalism doesn’t involve the equal treatment of
domestic and foreign individuals, it is the equal treatment of foreign and domestic
laws].
- This is derived from the idea that law of any country can be applied.
- Ex: EU has 27 member States. Universalism means that a French Court should be
allowed to apply Indian law even though India is not a member of the EU.

Private IL is Europeanized

 The whole question of Private IL is to decide whose municipal law is applicable?

 Europeanized because: Europe was one of the first group of countries who have
come together to harmonize their rules.
 EU (all 27 member States) have harmonized their rules.
 This has led to a great deal of European colonization. 27 member States in the
Europe have harmonized core dispute resolution rules.
 European colonization had a huge impact on how countries reacted.
o China and Japan had a deep Confucian culture: this means that the people do
not need laws to regulate their conduct. They have inner morality to conduct
themselves in order.
o Law is just there to discipline indisciplined, uncivilized people in the society.

**JAPAN:
o To prevent itself from being colonized, Japan westernized its Private IL in
1898.
o It gave up this Confucian attitude and the Japanese law is now a replica of
European (specifically German) law. Japan sent a lot of its scholars to
Germany and implemented German law in their nation. Now they have a
replica of EU law.
o Thus, Japan also has a universalistic attitude, now.

**CHINA:
o China on the other hand had a total opposite reaction.
o China got really angry. It began distrusting foreign law and kept applying
domestic law. Resultantly, it created a closed economy.
o In 2013, China initiated the Belt & Road Initiative officially. Before this no
semblances of foreign law at all in China.
o The BRI initiative was an initiative to integrate with the rest of the world. As
such, it opened its attitude to foreign jurisdictions.
o Now, China is very modern and has started more openly enforcing foreign
awards.

**INDIA:

o India had no reaction to this European colonization.

o There was non-development of any harmonization of dispute resolution rules
in India.
o India still has no reaction to this European colonization.
Jurisdiction of Courts:

- When Europe harmonized the law, it was so successful that a lot of countries worldwide
started replicating their law.

International Jurisdiction Court – jurisdiction of a national court in an international dispute.

 Jurisdiction: the capacity of a court to hear and adjudicate a dispute.

 International jurisdiction – Jurisdiction in international matters – rules must be
formulated to cater to the complexities of foreign related disputes. Multiple
jurisdictions might be involved in an international dispute.
 Ideally, domestic rules of jurisdiction should not extend to international matters.
 Just cause the court has jurisdiction, does not mean it should exercise it because it
might be in the sovereign interest of another nation. From here comes the idea of
exclusive jurisdiction. As such, the courts of only 1 country will have jurisdiction
over an international dispute.
 Matters of immovable property are normally regarded as matters of national
interests of the country where the immovable property is situated. As such, the
courts of the nation where immovable property is situated will have exclusive
jurisdiction.
 Sale of shares: jurisdiction rests with the nation wherein a company has been
incorporated.
 Ousting the jurisdiction of the court means the judgement is enforceable.
 Generally, disputes in rem (concerning the whole world) are matters of national
interests. This is governed by exclusive jurisdiction. Parties cannot choose their
own jurisdiction of court.
 Generally, disputes in personam have permissive jurisdiction. Meaning – the
parties can choose the jurisdiction of the court from the list of available courts of
competent jurisdiction.
 If both permissive and exclusive jurisdiction is together, then we give priority to
exclusive jurisdiction.
 Permissive Jurisdiction Types:
** General: depends on the connection of the defendant with the court in
question. This is based on defendant’s residence/ domicile. Cannot be based on
nationality or citizenship.
o Residence & domicile is interpreted differently in civil & common law
countries.
o Common Law: -
Residence: defendant’s intention to live in a place for a certain period of
time for a particular purpose. You can have multiple residences.

Domicile: Person’s intention to have a habitual abode in the place/ country.

Connection is with the heart of the person to live in this country. You can
have only 1 domicile.
 o Civil Law: -
Both residence & domicile is the same. Depends on where you live.

Brussels 1 - Intl j of EU courts in comm and civil matter

S. 16-20 cpc made w/ domestic dispute sin mind, ill equpped to deal with intl complexities
Permissive j - 4,7,25,26,17-19 (consumer matters), 20-23(employment contracts)
Exclusive j 24

A. 4 - general j based on def domicile

Ousts j of nationality courts (shall)

A. 62 - court applies internal law to determine domicile
A. 63 - domicile for artificial person a stautory seat
b central admin
c seat of business

A. 7 CoA used to determine territorial j

Art. 7 dependant on art. 4
Art.7 : cause of action is not standalone, domicile is also important (in the EU)
A.7 does not clarify
1. Domicile
2. Cause of action
3. Submission
Act of delivery not dispatching - 7(1)
Color drak case - multiple places of CoA in a member state - depends on economic criteria - where
price of consignment is higher
Express and implied submission
Implied through conduct of submission - art 26
Express thru prorogation- art 25 through written agreement regardless of domicile
Prorogation is a form of permissive jurisdiction, the opposite of exclusive jurisdiction but within
permissive, there is an exclusive jurisdiction - once you chose you cannot change
Only time a court can deny jurisdiction that if the choice of court agreement is void to the extent of its
substantive validity
Art 24 - exclusive jurisdiction - sovereignty - cannot prorogate out of it
Consumer - using commodity not for the purpose of earning a livelihood
Consumers are perceived as vulnerable parties, lower bargaining power
Ruby princess case - cruise from aus to netherlands and back, cruise owner imposed clause that in the
event of a dispute you cannot file a class action suit - shows that consumers are vulnerable leading to
the other party being too powerful
Therefore consumers and employees need extra protection hence should not be subjected to
jurisdictions that are to their disadvantage
Consumers are subject to special jurisdiction rules - art. 18: consumers domicile is also valid
19 - prorogation in a consumer contract is generally prohibited and only consumer generally has the
power to decide the jurisdiction
ART 20, 21, 22 and 23: employment
Forum non conveniens (common law concept) - discretionary
Lis alibi pendens - Lis pendens (civil law concept) - obligatory Art. 29 - 34
29 - 31: division of jurisdiction b/w member states
29 - same parties, same cause of action: obligation on court
30 - related causes of action : discretion of court exercised only in a proper and safe manner
31 - reverse lis alibi pendens (to prevent the italian torpedo effect)
33-34: division of jurisdiction b/w member state and non-member state
33 and 34 applicable only when suit is within jurisdiction of article 4 or 7 and non-member state
exclusive jurisdiction
33 lays down Discretionary power
Employment contracts:
Employee can sue where the employee is working/ employer is domiciled
Article 22 – right to prorogate
Article 23 – employer can sue where employee is domiciled.
In case of employment contracts, general right to prorogation is not there. Employer is only allowed
to sue where the employee is domiciled. However, if the employee is suing the employer, Article 21
kicks in where the employer is domiciled/ where the employee is carrying on work habitually (for the
particular employment contract and otherwise also).
(Article 7 covers clause of action. However, employment and consumer contracts are not governed by
Article 7).
After the dispute arose, then parties can prorogate the disputes through an agreement to continue the
suit in another country as well.
However, if the employee wishes to prorogate the case, they can do so at any time they want to.

Lis alibi pendens

- Civil law concept.

- Pending litigation – prevents concurrent litigation suits.
- Mandatory notion that the 2nd court seized of the matter has to give it up to the first court
that was seized of the matter.

Forum Non-Convenience

- Common law system.

- Discretionary power
- Forum non conveniens refers to a court’s discretionary power to decline to exercise its
jurisdiction where another court, or forum, may more conveniently hear a case.
Convenience can be based on the amount of damages, geographical location, anything to
be honest. The more convenient court may not have even been seized of this matter yet,
but the current court could use its discretion to redirect the case elsewhere.

Article 29-34 – Lis alibi pendens

29-31: separates the concomitant jurisdiction of courts between member States of EU.
33-34: separates the concomitant jurisdiction of courts between member States of EU and non-
member States.
Art. 29 is r/w 30:
Art 29: applicable same parties, same cause of action, dispute is pending before a court in member
State, while another court in another member State is also seized of the matter presently, in live time.
The second court will have to (obligation) stay the matter to see if the first court will successfully
apply its jurisdiction, if it does, then the second court will dismiss the case.
Art 30: Related causes of action: not the same parties (defendant could be the same in both cases) and
not same cause of action. The second court does not have the obligation but it may stay the case and
transfer the case to the first court to amalgamate/ consolidate the cases together, if it does so, the
second court will dismiss the case. If first court does not take up the case, it will try it.
Art 31: Reverse Lis Alibi Pendens
Under choice of court agreement (COCA), two parties decided to use Munich courts for all disputes
(prorogation). However, 1 party sues the party in Hamburg (where both parties have their place of
business). So, the other party files an Anti-suit injunction in Munich.
If we were to apply Art 29, Munich court would have to give up the jurisdiction. But to give effect to
the COCA, Art 31 mandates that Hamburg give up the jurisdiction to Munich (reverse lis pendens)
even though the Munich was the second court to seize the matter.
Thus, Art 31(2) enforces Art 25 (COCA).
Article 31(1)
Italian Torpedo Effect – to waste the time of parties, people would go to the wrong court.

Article 33
Owusu v. Jackson:
 Owusu (Englishman) booked an Airbnb in Jamaica belonging to Jackson (an Englishman).
 Owusu got hurt in the Airbnb.
 Jamaican law states that the court where the immovable property is located will have
exclusive jurisdiction.
 Owusu sued Jackson in England (where he was domiciled) under Art 4 of Brussels. The
English courts gave the judgement and that was not enforceable in Jamaica.

(ferexpo)
 Ukrainian man purchased shares in a Ukrainian company managed by 4 Englishman.
 Share prices increased, 4 Englishmen retracted the Share Purchase Agreement. Ukrainian
man sued the company in Ukraine. But as per Article 4, the petitioner can only sue in UK
(at the time UK was a member of EU).
 Courts realized that non-member States of EU were not allowed to exercise exclusive
jurisdiction in their own courts due to Article 4 and 7. Thus, Article 33 was introduced.
Article 33 applies when: 1. Dispute is in the exclusive jurisdiction of a non-member State
and 2. Within Article 4 of 7 of Brussels.
 Article 33 is non-mandatory.
 Article 33(1) states that: the court of the Member State may stay the proceedings if:
(a) it is expected that the court of the third State will give a judgment capable of
recognition and, where applicable, of enforcement in that Member State (essentially if
the non-member State court’s decisions are enforceable in the EU member States or
not); and
(b) the court of the Member State is satisfied that a stay is necessary for the proper
administration of justice.
 Article 33(2). The court of the Member State may continue the proceedings at any time
if:
(a) the proceedings in the court of the third State are themselves stayed or discontinued;
(b) it appears to the court of the Member State that the proceedings in the court of the
third State are unlikely to be concluded within a reasonable time; or
(c) the continuation of the proceedings is required for the proper administration of
justice.
 Article 33(3). The court of the Member State shall dismiss the proceedings if the
proceedings in the court of the third State are concluded and have resulted in a
judgment capable of recognition and, where applicable, of enforcement in that Member
State.
Article 33(4). The court of the Member State shall apply this Article on the application of one
of the parties or, where possible under national law, of its own motion. (This provision can
be applied either by the application of one of the parties/ the court can apply Article 33
suo moto).

Note: Indian judgements are not enforceable in Germany.

Article 34: same as Article 33 but for related actions/ cases (not the same case).

Ferexpo Owusu article

 The focus of this article is to examine the recent and radical case of Ferrexpo in which Mr
Justice Andrew Smith explicitly confirmed for the very first time that a Member State
 court is entitled to apply certain provisions of the Brussels Regulation “refl exively” in
accordance with jurisprudence of the European Court of Justice (ECJ) so as to determine
whether a case before it may be stayed in favour of the courts of a non-Member State.
Further, Andrew Smith J held that it could have direct recourse to a stay on the basis of
its “domestic” powers in relation to case management and/or abuse of process. Perhaps
most signifi cantly, the Judge held that these orders were wholly consistent with the
controversial decision of the ECJ in Owusu v Jackson.
The Facts of the Case
The facts of Owusu are well known. Mr Owusu was injured whilst on holiday in Jamaica and
brought proceedings in the English courts against Mr Jackson who had rented out the
holiday villa in which Mr Owusu stayed – and a number of Jamaican companies. Both Mr
Owusu and Mr Jackson were domiciled in the United Kingdom. Mr Jackson and the other
defendants contested the jurisdiction of the English court, arguing that since Jamaica
was the more appropriate forum for the dispute to be heard, the English proceedings
should be stayed accordingly in favour of the dispute being heard before the Jamaican
courts. The defendants lost at fi rst instance and appealed.
The Court held that the doctrine of forum non conveniens is incompatible with the
Convention as it would undermine the principle of legal certainty and the uniform
application of the European rules of jurisdiction. Article 2 is mandatory in nature and can
only be derogated from in ways expressly provided for by the Convention. Further, the
Court specifically noted that, although the doctrine of forum non conveniens was
discussed at the time that the United Kingdom acceded to the Convention, no exception
was made by the authors of the Convention. It concluded that the Convention “precludes
a court of a Contracting State from declining the jurisdiction conferred on it by Article 2
of that convention on the ground that a court of a non-Contracting State would be a
more appropriate forum for the trial of the action even if the jurisdiction of no other
Contracting State is in issue or the proceedings have no connecting factors to any other
Contracting State.

The Facts in Ferrexpo

The proceedings before the Commercial Court in Ferrexpo (the “English Action”) were
brought against the backdrop of many years of litigation (and indeed some arbitration)
in Ukraine. In 2002, the four English-domiciled defendant companies in the English
Action (the “Defendants”) purported to transfer their share interests in the holding
company of a large mine in the Poltava region of Ukraine (now named OJSC Ferrexpo
Poltava Mining (“Poltava GOK”)) to four corporate buyers for cash consideration, via a
Sale and Purchase Agreement (the “SPA”). In 2005, Gilson Investments Limited (“Gilson”),
the fi rst defendant in the English Action, brought a claim before the Commercial Court of
the Donetsk region of Ukraine, seeking to have the SPA (and a collateral agreement)
declared void ab initio as a matter of Ukrainian law. Gilson’s claim was granted by the
Court, whose ruling then became the subject of numerous appeals and rehearings,
including before the International Commercial Arbitration Court for the Ukraine Chamber
of Commerce and Industry. On 21 April 2010, the High Commercial Court of Ukraine
concluded that the SPA and the collateral agreement were both invalid and void ab initio
as Gilson claimed, and refused permission for an appeal to the Supreme Court. As a
result, it was common ground as between the parties that the decision of the High
Commercial Court of Ukraine was binding as a matter of Ukrainian law. In the
 intervening period, the shares disposed of were subsequently transferred and the share
capital of Poltava GOK was increased several times. During this time, Ferrexpo AG
(“Ferrexpo”) (a subsidiary of the FTSE250- listed Ferrexpo plc) came to be the purported
owner of approximately 98% of the shares in Poltava GOK as in current issue.

In a detailed and ground-breaking decision, Mr Justice Andrew Smith became the fi rst
English judge to determine that the refl exive theory is applicable under English law. He
decided to adopt the partial refl ection approach; namely that the scope of the relevant
Articles was to be determined by ECJ jurisprudence. He considered there was no good
reason to support the mirror-image approach and was conscious that unless the national
court retained some discretion, an automatic displacement of jurisdiction to a non-
Member State could have adverse consequences for the claimant in certain situations.
He further considered that because the English procedure for staying proceedings was
discretionary, this also supported a partial reflection approach.
BRUSSELS PROVISIONS
Article 4
1. Subject to this Regulation, persons domiciled in a Member State shall, whatever their
nationality, be sued in the courts of that Member State.
2. Persons who are not nationals of the Member State in which they are domiciled shall be
governed by the rules of jurisdiction applicable to nationals of that Member State.

Article 7
A person domiciled in a Member State may be sued in another Member State:
(1) (a) in matters relating to a contract, in the courts for the place of performance of the
obligation in question;
(b) for the purpose of this provision and unless otherwise agreed, the place of performance
of the obligation in question shall be:
— in the case of the sale of goods, the place in a Member State where, under the contract,
the goods were delivered or should have been delivered,
— in the case of the provision of services, the place in a Member State where, under the
contract, the services were provided or should have been provided;
(c) if point (b) does not apply then point (a) applies;
(2) in matters relating to tort, delict or quasi-delict, in the courts for the place where the
harmful event occurred or may occur;
(3) as regards a civil claim for damages or restitution which is based on an act giving rise to
criminal proceedings, in the court seised of those proceedings, to the extent that that court
has jurisdiction under its own law to entertain civil proceedings;
(4) as regards a civil claim for the recovery, based on ownership, of a cultural object as
defined in point 1 of Article 1 of Directive 93/7/EEC initiated by the person claiming the right
to recover such an object, in the courts for the place where the cultural object is situated at
the time when the court is seised;
(5) as regards a dispute arising out of the operations of a branch, agency or other
establishment, in the courts for the place where the branch, agency or other establishment
is situated;
(6) as regards a dispute brought against a settlor, trustee or beneficiary of a trust created by
the operation of a statute, or by a written instrument, or created orally and evidenced in
writing, in the courts of the Member State in which the trust is domiciled;
(7) as regards a dispute concerning the payment of remuneration claimed in respect of the
salvage of a cargo or freight, in the court under the authority of which the cargo or freight in
question:
(a) has been arrested to secure such payment; or
(b) could have been so arrested, but bail or other security has been given;
provided that this provision shall apply only if it is claimed that the defendant has an interest
in the cargo or freight or had such an interest at the time of salvage.
Jurisdiction over consumer contracts
Article 17
1. In matters relating to a contract concluded by a person, the consumer, for a purpose
which can be regarded as being outside his trade or profession, jurisdiction shall be
determined by this Section, without prejudice to Article 6 and point 5 of Article 7, if:
(a) it is a contract for the sale of goods on instalment credit terms;
(b) it is a contract for a loan repayable by instalments, or for any other form of credit, made
to finance the sale of goods; or
(c) in all other cases, the contract has been concluded with a person who pursues
commercial or professional activities in the Member State of the consumer’s domicile or,
by any means, directs such activities to that Member State or to several States including
that Member State, and the contract falls within the scope of such activities.
2. Where a consumer enters into a contract with a party who is not domiciled in a Member
State but has a branch, agency or other establishment in one of the Member States, that
party shall, in disputes arising out of the operations of the branch, agency or
establishment, be deemed to be domiciled in that Member State.
3. This Section shall not apply to a contract of transport other than a contract which, for an
inclusive price, provides for a combination of travel and accommodation.

Article 18
1. A consumer may bring proceedings against the other party to a contract either in the
courts of the Member State in which that party is domiciled or, regardless of the
domicile of the other party, in the courts for the place where the consumer is domiciled.
2. Proceedings may be brought against a consumer by the other party to the contract only in
the courts of the Member State in which the consumer is domiciled.
3. This Article shall not affect the right to bring a counter- claim in the court in which, in
accordance with this Section, the original claim is pending.

Article 19
The provisions of this Section may be departed from only by an agreement:
(1) which is entered into after the dispute has arisen;
(2) which allows the consumer to bring proceedings in courts other than those indicated in
this Section; or
(3) which is entered into by the consumer and the other party to the contract, both of whom
are at the time of conclusion of the contract domiciled or habitually resident in the same
Member State, and which confers jurisdiction on the courts of that Member State,
provided that such an agreement is not contrary to the law of that Member State.

SECTION 5
Jurisdiction over individual contracts of employment
Article 20
1. In matters relating to individual contracts of employment, jurisdiction shall be determined
by this Section, without prejudice to Article 6, point 5 of Article 7 and, in the case of
proceedings brought against an employer, point 1 of Article 8.
2. Where an employee enters into an individual contract of employment with an employer
who is not domiciled in a Member State but has a branch, agency or other establishment
in one of the Member States, the employer shall, in disputes arising out of the
operations of the branch, agency or establishment, be deemed to be domiciled in that
Member State.

Article 21
1. An employer domiciled in a Member State may be sued:
(a) in the courts of the Member State in which he is domiciled; or
(b) in another Member State:
(i) in the courts for the place where or from where the employee habitually carries out his
work or in the courts for the last place where he did so; or
(ii) if the employee does not or did not habitually carry out his work in any one country, in
the courts for the place where the business which engaged the employee is or was
situated.
2. An employer not domiciled in a Member State may be sued in a court of a Member State
in accordance with point (b) of paragraph 1.

Article 22
1. An employer may bring proceedings only in the courts of the Member State in which the
employee is domiciled.
2. The provisions of this Section shall not affect the right to bring a counter-claim in the
court in which, in accordance with this Section, the original claim is pending.

Article 23
The provisions of this Section may be departed from only by an agreement:
(1) which is entered into after the dispute has arisen; or
(2) which allows the employee to bring proceedings in courts other than those indicated in
this Section.

SECTION 6
Exclusive jurisdiction
Article 24
The following courts of a Member State shall have exclusive jurisdiction, regardless of the
domicile of the parties:
(1) in proceedings which have as their object rights in rem in immovable property or
tenancies of immovable property, the courts of the Member State in which the property
is situated.
However, in proceedings which have as their object tenancies of immovable property
concluded for temporary private use for a maximum period of six consecutive months,
the courts of the Member State in which the defendant is domiciled shall also have
jurisdiction, provided that the tenant is a natural person and that the landlord and the
tenant are domiciled in the same Member State;
(2) in proceedings which have as their object the validity of the constitution, the nullity or
the dissolution of companies or other legal persons or associations of natural or legal
persons, or the validity of the decisions of their organs, the courts of the Member State
in which the company, legal person or association has its seat. In order to determine that
seat, the court shall apply its rules of private international law;
(3) in proceedings which have as their object the validity of entries in public registers, the
courts of the Member State in which the register is kept;
(4) in proceedings concerned with the registration or validity of patents, trade marks,
designs, or other similar rights required to be deposited or registered, irrespective of
whether the issue is raised by way of an action or as a defence, the courts of the Member
State in which the deposit or registration has been applied for, has taken place or is under
the terms of an instrument of the Union or an international convention deemed to have
taken place.
Without prejudice to the jurisdiction of the European Patent Office under the Convention on
the Grant of European Patents, signed at Munich on 5 October 1973, the courts of each
Member State shall have exclusive jurisdiction in proceedings concerned with the
registration or validity of any European patent granted for that Member State;
(5) in proceedings concerned with the enforcement of judgments, the courts of the Member
State in which the judgment has been or is to be enforced.

SECTION 7
Prorogation of jurisdiction
Article 25
1. If the parties, regardless of their domicile, have agreed that a court or the courts of
Member State are to have jurisdiction to settle any disputes which have arisen or which
may arise in connection with a particular legal relationship, that court or those courts
shall have jurisdiction, unless the agreement is null and void as to its substantive validity
under the law of that Member State. Such jurisdiction shall be exclusive unless the
parties have agreed otherwise. The agreement conferring jurisdiction shall be either:
(a) in writing or evidenced in writing;
(b) in a form which accords with practices which the parties have established between
themselves; or
(c) in international trade or commerce, in a form which accords with a usage of which
the parties are or ought to have been aware and which in such trade or commerce is
widely known to, and regularly observed by, parties to contracts of the type involved in
the particular trade or commerce concerned.
2. Any communication by electronic means which provides a durable record of the
agreement shall be equivalent to ‘writing’.
3. The court or courts of a Member State on which a trust instrument has conferred
jurisdiction shall have exclusive jurisdiction in any proceedings brought against a settlor,
trustee or beneficiary, if relations between those persons or their rights or obligations
under the trust are involved.
4. Agreements or provisions of a trust instrument conferring jurisdiction shall have no legal
force if they are contrary to Articles 15, 19 or 23, or if the courts whose jurisdiction they
purport to exclude have exclusive jurisdiction by virtue of Article 24.
5. An agreement conferring jurisdiction which forms part of a contract shall be treated as an
agreement independent of the other terms of the contract.
 The validity of the agreement conferring jurisdiction cannot be contested solely on the
ground that the contract is not valid.

Article 26
1. Apart from jurisdiction derived from other provisions of this Regulation, a court of a
Member State before which a defendant enters an appearance shall have jurisdiction.
This rule shall not apply where appearance was entered to contest the jurisdiction, or
where another court has exclusive jurisdiction by virtue of Article 24.
2. In matters referred to in Sections 3, 4 or 5 where the policyholder, the insured, a
beneficiary of the insurance contract, the injured party, the consumer or the employee is
the defendant, the court shall, before assuming jurisdiction under paragraph 1, ensure
that the defendant is informed of his right to contest the jurisdiction of the court and of
the consequences of entering or not entering an appearance.

SECTION 9
Lis pendens — related actions
Article 29
1. Without prejudice to Article 31(2), where proceedings involving the same cause of action
and between the same parties are brought in the courts of different Member States, any
court other than the court first seised shall of its own motion stay its proceedings until
such time as the jurisdiction of the court first seised is established.
2. In cases referred to in paragraph 1, upon request by a court seised of the dispute, any
other court seised shall without delay inform the former court of the date when it was
seised in accordance with Article 32.
3. Where the jurisdiction of the court first seised is established, any court other than the
court first seised shall decline jurisdiction in favour of that court.

Article 30
1. Where related actions are pending in the courts of different Member States, any court
other than the court first seised may stay its proceedings.
2. Where the action in the court first seised is pending at first instance, any other court may
also, on the application of one of the parties, decline jurisdiction if the court first seised
has jurisdiction over the actions in question and its law permits the consolidation
thereof.
3. For the purposes of this Article, actions are deemed to be related where they are so
closely connected that it is expedient to hear and determine them together to avoid the
risk of irreconcilable judgments resulting from separate proceedings.

Article 31
1. Where actions come within the exclusive jurisdiction of several courts, any court other
than the court first seised shall decline jurisdiction in favour of that court.
2. Without prejudice to Article 26, where a court of a Member State on which an agreement
as referred to in Article 25 confers exclusive jurisdiction is seised, any court of another
 Member State shall stay the proceedings until such time as the court seised on the basis
of the agreement declares that it has no jurisdiction under the agreement.
3. Where the court designated in the agreement has established jurisdiction in accordance
with the agreement, any court of another Member State shall decline jurisdiction in favour
of that court.
4. Paragraphs 2 and 3 shall not apply to matters referred to in Sections 3, 4 or 5 where the
policyholder, the insured, a beneficiary of the insurance contract, the injured party, the
consumer or the employee is the claimant and the agreement is not valid under a
provision contained within those Sections.

Article 33
1. Where jurisdiction is based on Article 4 or on Articles 7, 8 or 9 and proceedings are
pending before a court of a third State at the time when a court in a Member State is
seised of an action involving the same cause of action and between the same parties as
the proceedings in the court of the third State, the court of the Member State may stay
the proceedings if:
(a) it is expected that the court of the third State will give a judgment capable of recognition
and, where applicable, of enforcement in that Member State; and
(b) the court of the Member State is satisfied that a stay is necessary for the proper
administration of justice.
2. The court of the Member State may continue the proceedings at any time if:
(a) the proceedings in the court of the third State are themselves stayed or discontinued;
(b) it appears to the court of the Member State that the proceedings in the court of the third
State are unlikely to be concluded within a reasonable time; or
(c) the continuation of the proceedings is required for the proper administration of justice.
3. The court of the Member State shall dismiss the proceedings if the proceedings in the
court of the third State are concluded and have resulted in a judgment capable of
recognition and, where applicable, of enforcement in that Member State.
4. The court of the Member State shall apply this Article on the application of one of the
parties or, where possible under national law, of its own motion.

Article 34
1. Where jurisdiction is based on Article 4 or on Articles 7, 8 or 9 and an action is pending
before a court of a third State at the time when a court in a Member State is seised of an
action which is related to the action in the court of the third State, the court of the
Member State may stay the proceedings if:
(a) it is expedient to hear and determine the related actions together to avoid the risk of
irreconcilable judgments resulting from separate proceedings;
(b) it is expected that the court of the third State will give a judgment capable of recognition
and, where applicable, of enforcement in that Member State; and
(c) the court of the Member State is satisfied that a stay is necessary for the proper
administration of justice.
2. The court of the Member State may continue the proceedings at any time if:
(a) it appears to the court of the Member State that there is no longer a risk of irreconcilable
judgments;
(b) the proceedings in the court of the third State are themselves stayed or discontinued;
(c) it appears to the court of the Member State that the proceedings in the court of the third
State are unlikely to be concluded within a reasonable time; or
(d) the continuation of the proceedings is required for the proper administration of justice.
3. The court of the Member State may dismiss the proceedings if the proceedings in the
court of the third State are concluded and have resulted in a judgment capable of
recognition and, where applicable, of enforcement in that Member State.
4. The court of the Member State shall apply this Article on the application of one of the
parties or, where possible under national law, of its own motion.
INDIA
Section 20(1) of CPC:

 CPC- India perspective

 No specific courts for Private International Law
 CPC Section 83- allows aliens to sue
 Section 86- foreign entity gain access through Section 86 to Indian Courts

 Commercial Courts Act 2015-

 Section 2(3) - Requirement- 23+3 (23 circumstances + 3 lakh monetary threshold)
 Section 12- pre-mediation requirement.
Dedicated commercial courts are faster, with no upper threshold

Domicile – refers to a person’s intent to make a habitual abode in a place.

Residence – this is a factual question. Qualifier: actual & voluntary choice to remain in a
place for a long time.

Yogeshwar Bharadwaj v. State of UP for domicile and residence

 Domicile which is a private international law or con- flict of laws concept identifies a
person, in cases having a foreign element, with a territory subject to a single system of
law, which is regarded as his personal law. A person is domiciled in the country in which
he is considered to have his permanent home. His domicile is of the whole country, being
governed by common rules of law, and not confined to a part of it. No one can be without
a domicile and no one can have two domiciles.
 A domicile of origin is attributed to every person at birth by operation of law. This
domicile is not decided by his place of birth, or by the place of residence of his father or
mother, but by the domicile of the appropriate parent at the time of his birth, according as
he is legiti- mate or illegitimate. It is possible for the domicile of origin to be "transmitted
through several generations no member of which has ever resided for any length of time
in the country of the domicile of origin.
 The domicile of choice is a combination of residence and intention. Residence which is a
physical fact means "bodily presence as an inhabitant" (Re Newcomb, 192 N.Y. 238; 84
N.E. 950 (1908). See Dicey, op. cit). Such residence must be combined with intention to
reside permanently or for an unlimited time in a country. It is such intention coupled with
residence that acquires him a new domicile. It is immaterial for this purpose that the
residence is for a short duration, provided it is coupled with the requisite state of the
mind, namely the intention to reside there permanently. "If a man intends to return to the
land of his birth upon a clearly foreseen and reasonably anticipated contingency", Re
Fuld's Estate (No. 3) 1968 (P) 675. such as, the end of his studies, he lacks the intention
required by law. His "tastes, habits, conduct, actions, ambitions, health, hopes, and
projects"
IPR Disputes – residence of plaintiff is followed in copyrights and trademark cases.

Carries on business – meaning –

Myer HK Ltd. & Ors. v. Owners & Parties Vessel MB Fortune –

- Prinicipal place of business for a corporation can be: 1. Where governing power/
management & control is situated; 2. Chief executive offices are located & 3. The place
located in AOA and the register.
- If places are conflicting, choose place of business as where the governing power is
located.

MS Dhoda House v. Maingi

- If youre being sued in a place, is your physical presence needed?
- No, you’re physical presence is not needed, you can sue through your agent.

Cause of Action – Section 20(2)

Section 4 of ICA (Indian Contracts Act) – where contract had been concluded, cause of
action will arise there.

ABC Laminard Pvt Ltd. v. AB Agency Cell - where contract had been concluded, cause of
action will arise there; or where the contract had been performed and a breach of action
arose.

Mailbox Rule – cause of action is where, in non-instantaneous cases, the place of acceptance
occurs (ex: I receive a letter & give acceptance in Bombay, offer has been sent from
Pune).
In instantaneous cases, place of cause of action is where the offer has been made.

Banyan Tree Holding Ltd. v. A Murali Krishna Reddy & Anr. (trademark dispute)
- Dealt with passing of claims.
- Banyan Tree – HQ in Singapore and online presence is everywhere in India.
- Just because Banyan Tree is located online, can you sue the Banyan Tree from anywhere?
- Tighter version of the Effects Test: If defendant is physically not present in a forum State
but the website is universally accessible, the plaintiff must demonstrate that the defendant
targeted the forum state with the intent to harm the plaintiff.
Qualifiers (conjunctive in nature):
 Website should not be passive; it should be interactive.
 Website should be targeted to the foreign state for commercial
transactions.
 The defendant used this website to enter into an agreement with the
plaintiff for this commercial transaction which caused damage to the
plaintiff.

Submission/ Prorogation
- Submission can be express/ implicit.
- Express = written in contract.
- Implied = performance/ conduct
- There needs to be a nexus with the court where you are suing.

Modi Entertainment v. WSD Cricket

- Validity of the choice of court agreement was upheld. COCA supersedes the court of
nexus.
- Exception: for immovable property, the court where the immovable property is located
will get exclusive jurisdiction, despite COCA.

Note: Follow the defendant rule (for deciding which court is competent to accept jurisdiction)
does not always apply in tortious claims as well.

Follow the order to decide competent court: 1. Where is the defendant, 2. Where was the
contract concluded, 3. Where the performance/ breach occurred?

Bars to Jurisdiction
- Section 9 of CPC – jurisdiction.
- Express bars & implied bars
- Implied bar to jurisdiction – when it is written in the agreement.
- Express bar to jurisdiction – when the statute bars a court from accepting jurisdiction
(example – res judicata, res sub judice)
- Res sub judice doesn’t apply to foreign courts. Due to an explanation to Section 10.
However, in 2023, in Shiju Jacob Varghese v. Tower Vision Ltd. (Delhi HC), court held
that when an Indian court is seized, and a dispute is sub judice in a foreign court, the
Indian court becomes a forum non convenience. But since this a Delhi HC, it doesn’t hold
much precedence power.
- Forum non convenience – when one court deems it fit for another court to take
jurisdiction because that court is more convenient (in terms of location/ damages/ etc.)
- Myers HK Ltd. v. Owners & Parties Vessel MB Fortune – forum non convenience applies
when there is a clearly more appropriate court that can adjudicate the matter.
INDIAN PROVISIONS
CPC, 1908
JURISDICTION OF THE COURTS AND Res Judicata
9. Courts to try all civil suits unless barred. —The Courts shall (subject to the provisions
herein contained) have jurisdiction to try all suits of a civil nature excepting suits of
which their cognizance is either expressly or impliedly barred.
[Explanation I]. —A suit in which the right to property or to an office is contested is a suit of
a civil nature, notwithstanding that such right may depend entirely on the decision of
questions as to religious rites or ceremonies.
[Explanation II].—For the purposes of this section, it is immaterial whether or not any fees
are attached to the office referred to in Explanation I or whether or not such office is
attached to a particular place.]

10. Stay of suit.—No Court shall proceed with the trial of any suit in which the matter in
issue is also directly and substantially in issue in a previously instituted suit between the
same parties, or between parties under whom they or any of them claim litigating under
the same title where such suit is pending in the same or any other Court in 1 [India] have
jurisdiction to grant the relief claimed, or in any Court beyond the limits of 1 [India]
established or continued by 2 [the Central Government 3***.] and having like
jurisdiction, or before 4 [the Supreme Court]. Explanation. —The pendency of a suit in a
foreign Court does not preclude the Courts in 1 [India] from trying a suit founded on the
same cause of action.

11. Res judicata.—No Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former suit between
the same parties, or between parties under whom they or any of them claim, litigating
under the same title, in a Court competent to try such subsequent suit or the suit in which
such issue has been subsequently raised, and has been heard and finally decided by such
Court.

16. Suits to be instituted where subject-matter situate. —Subject to the pecuniary or other
limitations prescribed by any law, suits—
(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable
property,
(d) or the determination of any other right to or interest in immovable property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint or attachment, shall be
instituted in the Court within the local limits of whose jurisdiction the property is situate:
Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable
property held by or on behalf of the defendant may, where the relief sought can be
entirely obtained through his personal obedience, be instituted either in the Court within
the local limits of whose jurisdiction the property is situate, or in the Court within the
 local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries
on business, or personally works for gain.
Explanation.—In this section “property” means property situate in 1 [India].

17. Suits for immovable property situate within jurisdiction of different Courts. —Where a
suit is to obtain relief respecting, or compensation for wrong to, immovable property
situate within the jurisdiction of different Courts, the suit may be instituted in any Court
within the local limits of whose jurisdiction any portion of the property is situate:
Provided that, in respect of the value of the subject-matter of the suit, the entire claim is
cognizable by such Court.

18. Place of Institution of suit where local limits of jurisdiction of Courts are uncertain.—
(1) Where it is alleged to be uncertain within the local limits of the jurisdiction of which of
two or more Courts, any immovable property is situate, any one of those Courts may, if
satisfied that there is ground for the alleged uncertainty, record a statement to that effect
and thereupon proceed to entertain and dispose of any suit relating to that property, and its
decree in the suit shall have the same effect as if the property were situate within the local
limits of its jurisdiction: Provided that the suit is one with respect to which the Court is
competent as regards the nature and value of the suit to exercise jurisdiction.
(2) Where a statement has not been recorded under sub-section (1), and an objection is taken
before an Appellate or Revisional Court that a decree or order in a suit relating to such
property was made by a Court not having jurisdiction where the property is situate, the
Appellate or Revisional Court shall not allow the objection unless in its opinion there
was, at the time of the institution of the suit, no reasonable ground for uncertainty as to
the court having jurisdiction with respect thereto and there has been a consequent failure
of justice.

19. Suits for compensation for wrongs to person or movables.—Where a suit is for
compensation for wrong done to the person or to movable property, if the wrong was
done within the local limits of the jurisdiction of one Court and the defendant resides, or
carries on business, or personally works for gain, within the local limits of the jurisdiction
of another Court, the suit may be instituted at the option of the plaintiff in either of the
said Courts.
Illustrations
(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi.
(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A either
in Calcutta or in Delhi.

20. Other suits to be instituted where defendants reside or cause of action arises. —Subject to
the limitations aforesaid, every suit shall be instituted in a Court within the local limits of
whose jurisdiction—
(a) the defendant, or each of the defendants where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business, or
personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of
the suit, actually and voluntarily resides, or carries on business, or personally works for
gain, provided that in such case either the leave of the Court is given, or the defendants
who do not reside, or carry on business, or personally works for gain, as aforesaid,
acquiesce in such institution; or
(c) The cause of action, wholly or in part, arises. 1* * * * * 2 [Explanation]. —A corporation
shall be deemed to carry on business at its sole or principal office in 3 [India] or, in
respect of any cause of action arising at any place where it has also a subordinate office,
at such place.

Illustrations
(a) A is a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in Calcutta,
buys goods of A and requests A to deliver them to the East Indian Railway Company. A
delivers the goods accordingly in Calcutta. A may sue B for the price of the goods either
in Calcutta, where the cause of action has arisen, or in Delhi, where B carries on business.
(b) A resides at Simla, B at Calcutta and C at Delhi. A, B and C being together at Benaras, B
and C make a joint promissory note payable on demand, and deliver it to A. A may sue B
and C at Benaras, where the cause of action arose. He may also sue them at Calcutta,
where B resides, or at Delhi, where C resides but in each of these cases, if the non-
resident defendant objects, the suit cannot proceed without the leave of the Court.

83. When aliens may sue. —Alien enemies residing in India with the permission of the
Central Government, and alien friends, may sue in any Court otherwise competent to try
the suit, as if they were citizens of India, but alien enemies residing in India without such
permission, or residing in a foreign country, shall not sue in any such Court. Explanation.
—Every person residing in a foreign country, the Government of which is at war with
India and carrying on business in that country without a licence in that behalf granted by
the Central Government, shall, for the purpose of this section, be deemed to be an alien
enemy residing in a foreign country.

86. Suits against foreign Rulers, Ambassadors and Envoys.—

(1) No. 2*** foreign State may be sued in any Court otherwise competent to try the suit
except with the consent of the Central Government certified in writing by a Secretary to
that Government: Provided that a person may, as a tenant of immovable property, sue
without such consent as aforesaid 3 [a foreign State] from whom he holds or claims to
hold the property.
(2) Such consent may be given with respect to a specified suit or to several specified suits or
with respect to all suits of any specified class or classes, and may specify, in the case of
any suit or class of suits, the Court in which 4 [the foreign State] may be sued, but it shall
not be given, unless it appears to the Central Government that 4 [the foreign State]—
(a) has instituted a suit in the Court against the person desiring to sue 5 [it], or
(b) by 6 [itself] or another, trades within the local limits of the jurisdiction of the Court, or
(c) is in possession of immovable property situate within those limits and is to be sued with
reference to such property or for money charged thereon, or
(d) has expressly or impliedly waived the privilege accorded to 5 [it] by this section. 7
[(3) Except with the consent of the Central Government, certified in writing by a Secretary to
that Government, no decree shall be executed against the property of any foreign State.]
(4) The preceding provisions of this section shall apply in relation to— 8 [(a) any ruler of a
foreign State;] 1 [(aa)] any Ambassador or Envoy of a foreign State; (b) any High
Commissioner of a Commonwealth country; and (c) any such member of the staff 2 [of
the foreign State or the staff or retinue of the Ambassador] or Envoy of a foreign State or
of the High Commissioner of a Commonwealth country as the Central Government may,
by general or special order, specify in this behalf. 3 [as they apply in relation to a foreign
State].
[(5) The following persons shall not be arrested under this Code, namely: — (a) any Ruler of
a foreign State; (b) any Ambassador or Envoy of a foreign State; (c) any High
Commissioner of a Commonwealth country; (d) any such member of the staff of the
foreign State or the staff or retinue of the Ruler, Ambassador or Envoy of a foreign State
or of the High Commissioner of a Commonwealth country, as the Central Government
may, by general or special order, specify in this behalf.
(6) Where a request is made to the Central Government for the grant of any consent referred
to in subsection (1), the Central Government shall, before refusing to accede to the
request in whole or in part, give to the person making the request a reasonable
opportunity of being heard.]

Commercial courts Act

2(c) “commercial dispute” means a dispute arising out of––

(i) ordinary transactions of merchants, bankers, financiers and traders such as those
relating to mercantile documents, including enforcement and interpretation of
such documents;
(ii) export or import of merchandise or services;
(iii) issues relating to admiralty and maritime law;
(iv) transactions relating to aircraft, aircraft engines, aircraft equipment and
helicopters, including sales, leasing and financing of the same;
(v) carriage of goods;
(vi) (vi) construction and infrastructure contracts, including tenders;
(vii) (vii) agreements relating to immovable property used exclusively in trade or
commerce;
(viii) (viii) franchising agreements;
(ix) (ix) distribution and licensing agreements;
(x) (x) management and consultancy agreements;
(xi) (xi) joint venture agreements;
(xii) (xii) shareholders agreements;
(xiii) (xiii) subscription and investment agreements pertaining to the services industry
including outsourcing services and financial services;
(xiv) (xiv) mercantile agency and mercantile usage;
(xv) (xv) partnership agreements;
(xvi) (xvi) technology development agreements;
(xvii) (xvii) intellectual property rights relating to registered and unregistered
trademarks, copyright, patent, design, domain names, geographical indications
and semiconductor integrated circuits;
(xviii) (xviii) agreements for sale of goods or provision of services;
(xix) (xix) exploitation of oil and gas reserves or other natural resources including
electromagnetic spectrum;
(xx) (xx) insurance and re-insurance;
(xxi) (xxi) contracts of agency relating to any of the above; and
(xxii) (xxii) such other commercial disputes as may be notified by the Central
Government. Explanation.––A commercial dispute shall not cease to be a
commercial dispute merely because— (a) it also involves action for recovery of
immovable property or for realisation of monies out of immovable property given
as security or involves any other relief pertaining to immovable property;
(b) one of the contracting parties is the State or any of its agencies or
instrumentalities, or a private body carrying out public functions;
11. Bar of jurisdiction of Commercial Courts and Commercial Divisions.—Notwithstanding
anything contained in this Act, a Commercial Court or a Commercial Division shall not
entertain or decide any suit, application or proceedings relating to any commercial dispute
in respect of which the jurisdiction of the civil court is either expressly or impliedly
barred under any other law for the time being in force.

12A. Pre-Institution Mediation and Settlement—(1) A suit, which does not contemplate any
urgent interim relief under this Act, shall not be instituted unless the plaintiff exhausts the
remedy of preinstitution mediation in accordance with such manner and procedure as may
be prescribed by rules made by the Central Government. (2) The Central Government
may, by notification, authorise the Authorities constituted under the Legal Services
Authorities Act, 1987 (39 of 1987), for the purposes of pre-institution mediation. (3)
Notwithstanding anything contained in the Legal Services Authorities Act, 1987, the
Authority authorised by the Central Government under sub-section (2) shall complete the
process of mediation within a period of three months from the date of application made
by the plaintiff under sub-section (1): Provided that the period of mediation may be
extended for a further period of two months with the consent of the parties: Provided
further that, the period during which the parties remained occupied with the pre-
institution mediation, such period shall not be computed for the purpose of limitation
under the Limitation Act, 1963 (36 of 1963).
South Korea  8,10,11,16,17,18,27,28,41,42,43,44
Treaties that are concluded and official published and generally accepted international principles shall
have the same force as Domestic Korean Law. Case Law not a source of law, although it complements
the legal system. (Filled gaps in ex-officio application of PILA). PILA based on the PrIL Instruments
of the European Continent.
PILA cases heard by ordinary civil courts, however, certain special panels have been designated –
A.18 Court may apply the choice-of-law rules of the PILA of its own motion if it finds a foreign
element – application of foreign laws and choice-of-law rules are subject to review of appeal courts
and then the supreme court – Foreign Law to be proved by the opinion of experts – If not proved to
court’s satisfaction, it may apply other law that is similar to applicable foreign law
Incorporation Theory for a Company
To determine if there’s any special connection with Korea – Court may adopt any reasonable principal
and must regard the unique standing of a case with a foreign element and cannot apply the Civil Code
of procedure – while it may be applied by analogy, the unique standing must be accounted for.
A.3 – General jurisdiction – Defendant’s Domicile – Habitual Residence in Korea or when no habitual
residence anywhere else but has a residence in Korea – Company if incorporated or has Principal
office or place of central administration.
A.4/5 – Special Jurisdiction over location of office or place of business or location of property.
A.7 – Counterclaim where original claim is pending.
A.8 – CoCA – For it to be valid (Prorogating out of Korea) – Mustn’t fall within the exclusive
jurisdiction of Korea – Agreed upon foreign court must have jurisdiction under its rules – Case should
have a reasonable relation with the chosen foreign court – Jurisdiction mustn’t be egregiously unfair.
May also be ignored when: Agreement isn’t effective, Such designated country decides to not take
cognizance, Implicit submission of defendant by appearing and arguing on merits, grounds exist to
prevent agreement from being fulfilled properly (Force Majeure).
Invalidity of agreement under A.8 (1): No longer effective under the laws of “a” country, including
laws relating to applicable law – No capacity to contract such agreement – Lawsuit falls within the
jurisdiction of a country other than the ones chosen by the parties – Effecting agreement is contrary to
public order of where the lawsuit is pending.
Escape Clause based on the Principle of Closest Connection – A.8(1)(3)
A.9 – Submission by appearance (Defendant)
A.10 – Exclusive Jurisdiction – Not applicable when such issues are merely preliminary questions –
A.3-7 and 9 shall not apply when a foreign court has exclusive jurisdiction.
A.16-18 – Applicable Law
A.38 – Special Jurisdiction over Lawsuit regarding transfer, use of IP and establishment of security
right when IPR are protected, used or exercised in Korea or IP is registered in Korea.
A.40 – IP disputes shall be governed by law where the country of such rights are infringed - lex loci
protectionis.
A.41 – Special Jurisdiction over Lawsuits – if delivery of goods or supply of services is in Korea –
Main Part of obligation if a combined contract or multiple places of delivery/supply – Otherwise
where the obligation which forms basis of contract is to be performed.
A.42 - Consumer can file a lawsuit in Korea if the business entity: Conducts business activities or
advertises in Korea. Targets Korean consumers from outside Korea through business activities like
advertising. Encourages the consumer to place an order while the consumer is in Korea.
A consumer may also sue in Korea if the business entity receives an order from the consumer while
they are in Korea.
If the consumer is habitually resident in Korea, a business entity can only file a lawsuit against the
consumer in a Korean court, preventing consumers from being sued in foreign jurisdictions.
Agreements: Agreements on international jurisdiction between the business and the consumer are only
valid in two situations:
When the agreement is made after a dispute has arisen.
When the agreement allows the consumer to file a lawsuit in either a Korean court or a foreign court
(i.e., the agreement must provide the consumer with flexibility).
General Caveats: Mustn’t be for buyers occupation or business activities + Must be within the scope
of the seller’s occupation and business activities.
A.43 Employment Contract –
Employee’s Right to file a lawsuit
An employee may file a lawsuit against their employer in a Korean court if:
 The employee habitually provides labor in Korea.

 The employee last provided labor in Korea.

Even if the employee does not or did not habitually provide labor in Korea, they can still sue in Korea
if the employer's place of business was or is located in Korea.
Employer’s restriction on filing a lawsuit
An employer can only file a lawsuit against an employee in a Korean court if:
 The employee habitually resides in Korea.

 The employee habitually provides labor in Korea.

This provision prevents employers from suing employees in foreign courts unless the employee has a
clear connection to that foreign jurisdiction
Agreements on international jurisdiction between the parties to an employment contract are only valid
under specific conditions:
The agreement is made after a dispute has already occurred.
The agreement allows the employee to sue in both Korean courts and foreign courts (i.e., it must give
the employee flexibility to choose the court).
ACT ON PRIVATE INTERNATIONAL LAW (SOUTH KOREA)
Article 3 (General Jurisdiction)
(1) The court shall have international jurisdiction over a case involving a person who has habitual residence in
the Republic of Korea. The same shall also apply where the habitual residence of a person does not exist in
any country or cannot be identified, but the person has a residence in the Republic of Korea.
(2) The court shall have international jurisdiction over a lawsuit involving an ambassador, a minister and other
citizens of the Republic of Korea who are exempted from the exercise of foreign jurisdiction, notwithstanding
paragraph (1).
(3) The court shall have international jurisdiction over a lawsuit involving a corporation or organization with
its principal office, place of business, statutory seat, or place of central administration located in the Republic
of Korea or a corporation or organization established under the law of the Republic of Korea.

Article 4 (Special Jurisdiction over Locations of Offices or Places of Business)

(1) For a person, corporation, or organization that has an office or place of business in the Republic of Korea,
a lawsuit in connection with the business affairs of such office or place of business may be filed with the
court.
(2) For a person, corporation, or organization engaged in a continuous and systematic business or operating
activities in or toward the Republic of Korea, a lawsuit in connection with such business or business activities
may be filed with the court.

Article 5 (Special Jurisdiction over Location of Property)

A lawsuit regarding property rights may be filed with the court, in any of the following cases:
1. Where the property which is the purpose of the claim or security is located in the Republic of Korea;
2. Where any seizable property of a defendant is located in the Republic of Korea: Provided, That the
same shall not apply where a case in dispute is not, or slightly, related to the Republic of Korea, or
where the value of such property is considerably low.
and where there is a close connection between a claim against the defendant and another claim against the
other co-defendants, a single lawsuit against the co-defendants may be filed with the court, only to avoid
the risk of conflicting judgments.
(3) Where the court has international jurisdiction over the main claim of the following cases pursuant to
Articles 56 through 61, a lawsuit involving claims incidental to the main claim, such as the designation of a
person with parental authority or a caregiver for a child, and the payment of support may also be filed with
the court:
1. Cases regarding a marital relationship;
 2. Cases regarding a biological parental relationship;
3. Cases an adoptive relationship;
4. Cases regarding a parent-child relationship;
5. Cases regarding a support relationship;
6. Cases regarding guardianship.
(4) Where the court has international jurisdiction only over claims incidental to the main claim of a case under
the subparagraphs of paragraph (3), no lawsuit on such main claim may be filed with the court.

Article 7 (Jurisdiction over Counterclaims)

A defendant may file a counterclaim with the court in which the original claim is pending, for the purposes of
the claim closely related to the manner the original claim is filed or defense is adopted, where the court has
international jurisdiction over the original claim and the legal proceedings are not considerably delayed
thereby.
Article 8 (Jurisdiction by Agreement)
(1) The parties may agree on international jurisdiction over a lawsuit arising from a specific legal relationship
(hereafter in this Article referred to as "agreement"): Provided, That such agreement shall not be effective,
in any of the following cases:
1. Where the agreement is no longer effective under the laws of a country to have international jurisdiction
by agreement (including laws regarding the designation of the applicable law);
2. Where the parties to the agreement had no capacity to reach such agreement;
3. Where the lawsuit subject to an agreement pursuant to the statutes or regulations, or treaties of the
Republic of Korea falls under the international jurisdiction of a country other than the country agreed
upon by the parties;
4. Where the effects of the agreement, if recognized, are clearly contrary to good morals or other public
order of the country in which such lawsuit is pending.
(2) An agreement shall be reached in writing (including electronic expression of intent exchanged via
telegram, telex, facsimile, electronic mail, or any other means of communications).
(3) Jurisdiction determined by agreement shall be presumed to be exclusive.
(4) Where an agreement contains contract provisions between the parties, the effects of other provisions in the
contract shall not affect the effects of the agreement’s provisions.
(5) Where there is an exclusive jurisdiction agreement between the parties in favor of a foreign court regarding
a lawsuit arising from a specific legal relationship, but where the lawsuit is filed with the court, the court
shall dismiss the relevant lawsuit: Provided, That the same shall not apply in any of the following cases:
1. Where the agreement is not effective for falling under any subparagraph of paragraph (1);
2. Where jurisdiction by pleading under Article 9 arises;
3. Where the court of a country to have international jurisdiction by agreement decides not to review the
case;
4. Where sufficient grounds exist to prevent the agreement from being properly fulfilled.

Article 9 (Jurisdiction by Pleading)

 Where a defendant does not challenge the court’s lack of international jurisdiction, but instead pleads his or
her case on the merits or makes statements on the date for preparatory pleading, the court shall have
international jurisdiction over the case.

Article 10 (Exclusive Jurisdiction)

(1) The following lawsuits may be filed with the court only:
1. A lawsuit regarding registration in the official books of the Republic of Korea: Provided, That excluded
are lawsuits regarding transfer or other disposal under a contract between the parties seeking
completion of registration;
2. A lawsuit regarding the annulment of the establishment of, or the dissolution of, a corporation or
organization established under the statutes or regulations of the Republic of Korea, or the validity or
invalidity of a resolution of such corporation or organization;
3. A lawsuit regarding real rights on immovable property in the Republic of Korea or a lawsuit regarding
rights for the use of immovable property, which is recorded or registered in official books;
4. A lawsuit regarding the formation, validity or expiry of intellectual property rights, where the
intellectual property rights created by registration or entrustment are registered or applied for
registration in the Republic of Korea;
5. A lawsuit regarding the enforcement of judgment in the Republic of Korea.
(2) Articles 3 through 7, and 9 shall not apply to a lawsuit over which a foreign court has exclusive
international jurisdiction in accordance with the principles of international jurisdiction under the statutes or
regulations, or treaties of the Republic of Korea.
(3) Paragraph (1) shall not apply where matters falling under the exclusive jurisdiction of the court under the
subparagraphs of paragraph (1) are preliminary questions to be settled in another lawsuit.

Article 16 (Law of Nationality)

(1) Where a party having two or more nationalities is required to be governed by the law of the nationality, the
law of the country most closely related to the party shall be the law of his or her nationality: Provided, That
where the nationalities the party holds include the Republic of Korea, the law of the Republic of Korea
shall be the law of nationality.
(2) Where a party has no nationality, or his or her nationality cannot be identified, the law of the country of his
or her habitual residence (hereinafter referred to as "law of habitual residence") shall govern, and where the
habitual residence cannot be identified, then the law of the country of his or her residence shall govern.
(3) Where a party has nationality of a country which has varying laws depending on the territorial unit, the law
designated under the optional provisions of the law of the country shall govern and, in the absence of such
provisions, the law of a territorial unit most closely related to the party shall govern.

Article 17 (Law of Habitual Residence)

Where the law of habitual residence shall govern but the habitual residence of a party cannot be identified, the
law of the country of the party’s residence shall govern.
Article 18 (Application of Foreign Law)
The court shall examine and apply, ex officio, the details of the foreign law determined to be the applicable
law under this Act and may request a party's cooperation for the purpose.

Article 27 (Disappearance and Absence)

(1) The declaration of disappearance and the management of the property of an absentee shall be governed by
the law of the nationality of the missing person or absentee.
(2) Notwithstanding paragraph (1), the law of the Republic of Korea shall govern where the court renders a
judgment on the declaration of disappearance of a foreigner, the revocation thereof, or the management of
his or her property.

Article 28 (Capacity to Act)

(1) A person's capacity to act shall be governed by the law of his or her nationality. The same shall also apply
where the capacity to act is expanded after marriage.
(2) Once acquired, the capacity to act shall be neither lost nor restricted by the change of the nationality of a
person.

Article 38 (Special Jurisdiction over Lawsuit Regarding Contract for Intellectual Property Rights)
(1) A lawsuit regarding a contract for the transfer of intellectual property rights, the establishment of a security
right, permission for use, etc. may be filed with the court, in any of the following cases:
1. Where intellectual property rights are protected, used or exercised in the Republic of Korea;
2. Where intellectual property rights are registered in the Republic of Korea.
(2) Article 41 shall not apply to a lawsuit to which international jurisdiction under paragraph (1) applies.

Article 40 (Protection of Intellectual Property Rights)

The protection of intellectual property rights shall be governed by the law of the country in which such rights
are infringed.
CHAPTER VI CLAIMS
SECTION 1 International Jurisdiction
Article 41 (Special Jurisdiction over Lawsuit Regarding Contract)
(1) A lawsuit regarding a contract may be filed with the court, if any of the following places is located in the
Republic of Korea:
1. Place of delivery, in cases of a contract for the supply of goods;
2. Place of supply of service, in cases of a contract for the supply of services;
3. Place where the main part of the obligations is performed, in cases of a contract under which places of
delivery and places of supply of services are multiple, or a contract, the purpose of which is to supply
both goods and services.
(2) A lawsuit regarding a contract, other than the contracts prescribed in paragraph (1), may be filed with the
 court, where the parties to the contract agree that the obligations that formed the basis of the claim were or
are to be performed in the Republic of Korea.

Article 42 (Jurisdiction over Consumer Contracts)

(1) Where a consumer who has a habitual residence in the Republic of Korea concludes a contract for a
purpose other than his or her occupation or business activities, he or she may file a lawsuit with the court
against the other party to the contract (referring to a person who concludes a contract for his or her
occupation or business activities; hereinafter referred to as “business entity”) in any of the following cases:
1. Where a business entity engages in occupation or business activities, such as solicitation for transactions
through advertising, before the conclusion of a contract in a country in which a consumer has a habitual
residence (hereinafter referred to as "country of habitual residence") or where a business entity engages
in occupation or business activities, such as solicitation for transactions through advertising in a
territory not included in the consumer’s country of habitual residence toward the country of habitual
residence, and where the contract falls under the scope of the business entity's occupation or business
activities;
2. Where a business entity receives an order from a consumer in the consumer’s country of habitual
residence;
3. Where a business entity encourages a consumer to place an order in a country other than his or her
country of habitual residence.
(2) Where the habitual residence of a customer is in the Republic of Korea, a business entity may file a lawsuit
over a contract under paragraph (1) (hereinafter referred to as "consumer contract") against the consumer in
the court only.
(3) Where the parties to a consumer contract reach an agreement on international jurisdiction under Article 8,
such agreement shall be effective only in any of the following cases:
1. Where an agreement on international jurisdiction is reached after the occurrence of a dispute;
2. Where an international jurisdiction agreement allows a consumer to file a lawsuit not only with the
court, but also with a foreign court.

Article 43 (Jurisdiction over Employment Contracts)

(1) Where an employee provides his or her labor habitually or provided such labor for the last time in the
Republic of Korea, he or she may file a lawsuit against the employer with the court. The same shall also
apply where the employee did not or does not habitually provide labor in the Republic of Korea, but the
place of business in which the employer hired him or her existed or exists in the Republic of Korea.
(2) A lawsuit regarding an employment contract initiated by an employer against an employee may be filed
with the court only, where the employee has a habitual residence in the Republic of Korea or where he or
she habitually provides labor in the Republic of Korea.
(3) Where the parties to an employment contract reach an agreement on international jurisdiction under Article
8, such agreement shall be effective only in any of the following cases:
1. Where a dispute has already occurred;
2. Where an international jurisdiction agreement allows a consumer to file a lawsuit not only with the
 court, but also with a foreign court.

Article 44 (Special Jurisdiction over Lawsuit Regarding Torts)

A lawsuit regarding torts may be filed with the court, where a tort is committed in or toward the Republic of
Korea or where the consequences thereof occur in the Republic of Korea: Provided, That the same shall not
apply where it is impossible to predict that the consequences of the torts occur in the Republic of Korea.

Japan

No special intl j rules til 2011. Akin to india apply domestic laws by analogy
HCCCA incorporated in CCP
South Korea has an Intl Law act
Japanese court has J when :
1. defendant domiciled in Japan
2. corp. is located in Japan (not inc)
3. If place of performance of contract Unlike Brussels, it isn’t an independent ground,
def need not be domiciled in Japan
4. Injury suffered in Japan, CoA need not occur in Japan
5. If IP registered at Japan (exclusive)
6. CoCA

Immovable property does not have exclusive j

A 3, 6-9

Applied by Analogy up until 2011. Adopted the HCCCA. Inspired by Brussels.

General Jurisdiction – Defendant’s Domicile – If not, residence – If not, last residence unless domicile
has been taken up abroad. Domicile – Centre of life of natural person – unliked Brussels where its
determined by applying Internal Law. Business – Place of its principal office – When registered
principal office and factual principal office are in different states, both constitute general jurisdiction –
No known office, then domicile of its representatives or other person in charge of the business.
Special Jurisdiction - Under Article 3-3 No. 1 CCP, jurisdiction is based on the place of performance
of contractual obligations. This rule covers not only the primary claims (such as enforcement or
execution of contractual obligations) but also secondary claims like non-performance, restitution, and
damages - The place of performance must be either designated in the contract or determined by the
applicable law explicitly or implicitly chosen by the parties - domestic jurisdiction can cover both
contractual and non-contractual obligations – Mirrors Brussels 7 (1) which also limits the place of
performance to contractual obligation – Jurisdiction of Torts > Jurisdiction of Place of its obligations
as it has a closer link to the subject-matter and evidence, however, concurrent jurisdiction exists
(where the tort occurred, all claims can be brought where the tort occurred) and the matter can be
joined an heard together as per A. 3-6, unlike Brussels where they are exclusive, refers to where the
act was committed and where the injury has arise – Place of Performance to be determined by place
mentioned in contract or by applicable law chosen implicitly or expressly - Japan has the right to
handle legal cases about property when that property is located within its borders. can make decisions
about both physical items (like land or buildings) and non-physical items (like intellectual property).
However, the cases usually have to involve money, and if the property is worth very little, the courts
won't take those cases - disputes concerning immovable property fall under international jurisdiction
as per Article 3-3 No. 11 of the Code of Civil Procedure (CCP), which establishes non-exclusive
jurisdiction for all types of litigation, including rights in rem – however, disputes of entries in public
register fall within its exclusive jurisdiction – Exclusive Jurisdiction – existence or validity of IP
rights granted and registered in Japan (Infringement is non-exclusive) – CoCA (made in writing and
severable from main contract) to agree exclusive or non-exclusive jurisdiction of a Japanese or
foreign court as long as it isn’t applicable to a case falling within the exclusive jurisdiction or
consumer-employee protection apply – objective connection with designated forum not required
unlike SK – invalidity of CoCA: may be deemed null and void if it is found to be unfair or contrary to
good morals, court that cannot hear the case due to legal or factual barriers
If a business operator or employer initiates a lawsuit against a consumer or employee, the case must
be brought in the domicile of the consumer or employee (Art. 3-4(3) CCP) - consumers can file
actions against business operators where they were domiciled when the action was filed or when the
contract was concluded (Art. 3-4(1) CCP). Employees can sue employers where they performed their
labor or at the office through which they were employed (Art. 3-4(2) CCP) – CoCA; parties can
designate a competent court post-dispute (Art. 3-7(5)(6) CCP), and prior to a dispute, such agreements
are valid if they confer non-exclusive jurisdiction based on the consumer's domicile at contract
conclusion or the employee's workplace at termination (Art. 3-7(5) No. 1 and (6) No. 1 CCP)

Dismissal of actions on account of special circumstances - nature of the case, the degree of the
defendant’s burden to submit a defence, the location of the evidence, and any other circumstances -
Article 3-9 CCP applies unless Japanese courts have exclusive jurisdiction due to the parties'
agreement (Art. 3-9 CCP) or by law (Art. 3-10 CCP) - even general jurisdiction based on the
defendant’s domicile, principal office (Art. 3-2(1)(3) CCP), or appearance (Art. 3-8 CCP). Different
from Forum Non Conveniens as judge has to justify on basis of special circumstances as opposed to
discretionally – A. 118 (Lis Alibi Pendens) if case in foreign court is pending between same parties
and same cause of action and that case was instituted first and a recognizable judgement on merit is
expected to be rendered.
JAPANESE CCP
(Rules of the Supreme Court)
Article 3 Beyond what is provided for in this Code, necessary particulars in connection with
procedure in civil litigation are prescribed by the Rules of the Supreme Court.
Chapter II The Courts
Section 1 Jurisdiction of the Japanese Courts
(Jurisdiction Based on the Defendant's Domicile)
Article 3-2(1)The courts have jurisdiction over an action that is brought against a person domiciled in
Japan; against a person without a domicile or of domicile unknown, whose residence is in Japan; and
against a person without a residence or of residence unknown, who was domiciled in Japan before the
action was filed (unless the person has been domiciled in a foreign country after last being domiciled
in Japan).
(2)Notwithstanding the provisions of the preceding paragraph, the courts have jurisdiction over an
action that is brought against an ambassador, minister, or any other Japanese national in a foreign
country who enjoys immunity from the jurisdiction of that country.
(3)The courts have jurisdiction over an action that is brought against a corporation or any other
association or foundation whose principal office or business office is located in Japan, and against a
corporation, association, or foundation without a business office or other office, or with a business
office or other office of unknown location, whose representative or other person principally in charge
of its business is domiciled in Japan.
(Jurisdiction over an Action Involving a Contractual Obligation)
Article 3-3An action set forth in one of the following items may be filed with the Japanese courts in
the case specified in said item:
(i)an action on a claim for performance of a contractual obligation; on a claim involving benevolent
intervention in another's affairs that has been done, or unjust enrichment that has arisen, in connection
with a contractual obligation; on a claim for damages due to nonperformance of a contractual
obligation; or on any other claim involving a contractual obligation:if the contractually specified place
for performance of the obligation is within Japan, or if the law of the place adopted under the contract
gives a place within Japan as the place for performance of the obligation;
(ii)an action on a claim for the payment of monies for a bill or note or for a check:if the place for
payment of the bill or note or for the check is within Japan;
(iii)an action on a property right:if the subject matter of the claim is located within Japan, or if the
action is a claim for the payment of monies, and seizable property of the defendant is located within
Japan (except when the value of such property is extremely low);
(iv)an action against a person with an office or a business office, which is filed in connection with the
business conducted at that person's office or business office:if said office or business office is located
within Japan;
(v)an action against a person that conducts business in Japan (including a foreign company (meaning
a foreign company as prescribed in Article 2, item (ii) of the Companies Act (Act No. 86 of 2005))
that continually carries out transactions in Japan):if said action involves the business that the person
conducts in Japan;
(vi)an action based on a ship claim or any other claim secured by a ship:if the ship is located within
Japan;
(vii)one of the following actions involving a company or any other association or foundation: if the
association or foundation is a corporation and it is incorporated pursuant to the laws and regulations
of Japan, or if the association or foundation is not a corporation but its principal office or business
office is located within Japan:
(a)an action brought by a company or any other association against its member or a person that was its
member, an action brought by one member against another member or against a person that was a
member, or an action brought by a person that was a member against a member, which is based on the
relevant person's status as a member;
(b)an action brought by an association or foundation against its officer or a person that was its officer,
which is based on the person's status as an officer;
(c)an action brought by a company against its incorporator or a person that was its incorporator, or
against its inspector or a person that was its inspector, which is based on the person's status as an
incorporator or inspector;
(d)an action brought by a company's or other association's creditor against its member or a person that
was its member, which is based on the person's status as a member.
(viii)an action for a tort:if the place where the tort occurred is within Japan (excluding if the
consequences of a wrongful act committed in a foreign country have arisen within Japan but it would
not ordinarily have been possible to foresee those consequences arising within Japan);
(ix)an action for damages due to the collision of a ship or any other accident at sea:if the first place
where the damaged ship docked is within Japan;
(x)an action related to a maritime rescue:if the place where the maritime rescue took place or the first
place where the salvaged ship docked is within Japan;
(xi)an action related to real property:if the real property is located within Japan;
(xii)an action related to a right of inheritance or legitime, or an action related to a legacy or any other
act that comes into effect upon a person's death:if at the time of the opening of the succession, the
decedent was domiciled in Japan; if at the time of the opening of the succession, the decedent was
without a domicile or was of domicile unknown, but had a residence in Japan; or if at the time of the
opening of the succession, the decedent was without a residence or was of residence unknown, but
before the opening of the succession, the decedent had been domiciled in Japan (unless the decedent
was domiciled in a foreign country after last being domiciled in Japan;
(xiii)an action involving a claim against a succession or any other charge on an estate which does not
fall under the category of an action set forth in the preceding item:as specified in that item.
(Jurisdiction over Actions Involving Consumer Contracts and Labor Relations)
Article 3-4(1)An action involving a contract concluded between a Consumer (meaning an individual
(except for an individual that becomes a party to a contract as a part of a business undertaking or for
business purposes); the same applies hereinafter) and an Enterprise (meaning a corporation or any
other association or foundation or an individual that becomes a party to a contract as a part of a
business undertaking or for business purposes; the same applies hereinafter) (this excludes a labor
contract; hereinafter referred to as a "Consumer Contract"), which is brought by the Consumer against
the Enterprise, may be filed with the Japanese courts if the Consumer is domiciled in Japan at the time
the action is filed or at the time the Consumer Contract is concluded.
(2)An action involving a dispute over a civil matter that arises between an individual worker and that
worker's employer with regard to the existence or absence of a labor contract or any other particulars
of their labor relations (hereinafter referred to as an "Individual Civil Labor Dispute"),which is
brought by the worker against the employer, may be filed with the Japanese courts if the place where
the labor is to be provided as per the labor contract to which the Individual Civil Labor Dispute
pertains (or if such a place is not established, the location of the place of business that hired the
worker) is within Japan.
(3)The provisions of the preceding Article do not apply to an action involving a Consumer Contract
which is brought by an Enterprise against a Consumer, or an action involving Individual Civil Labor
Dispute which is brought by an employer against a worker.
(Exclusive Jurisdiction)
Article 3-5(1)Actions prescribed in Part VII, Chapter II of the Companies Act (excluding those
prescribed in Sections 4 and 6 of that Chapter), actions prescribed in Chapter VI, Section 2 of the Act
on General Incorporated Associations and General Incorporated Foundations (Act No. 48 of 2006),
and other actions equivalent thereto involving associations or foundations incorporated pursuant to
Japanese laws and regulations other than those Acts, are under the exclusive jurisdiction of the
Japanese courts.
(2)An action related to a registration is under the exclusive jurisdiction of the Japanese courts if the
place where the registration is to be made is within Japan.
(3)An action about the existence or absence or the validity of an intellectual property right (meaning
an intellectual property right as prescribed in Article 2, paragraph (2) of the Intellectual Property
Basic Act (Act No. 122 of 2002)) that arises through a registration establishing that intellectual
property right is under the exclusive jurisdiction of the Japanese courts if that registration was made in
Japan.
(Jurisdiction over a Joint Claim)
Article 3-6If multiple claims are involved in a single action and the Japanese courts have jurisdiction
over one of those claims and no jurisdiction over the others, the action may be filed with the Japanese
courts only if the one claim is closely connected with the other claims; provided, however, that with
regard to an action brought by multiple persons or an action brought against multiple persons, this
applies only in the case specified in the first sentence of Article 38.
(Agreement on Jurisdiction)
Article 3-7(1)Parties may establish, by agreement, the country in which they are permitted to file an
action with the courts.
(2)The agreement as referred to in the preceding paragraph is not valid unless it is made regarding
actions that are based on a specific legal relationship, and executed by means of a paper document.
(3)If Electronic or Magnetic Records (meaning records used in computer data processing which are
created in electronic form, magnetic form, or any other form that is otherwise impossible to perceive
through the human senses alone; the same applies hereinafter) in which the content of the agreement
is recorded are used to execute the agreement as referred to in paragraph (1), the agreement is deemed
to have been executed by means of a paper document and the provisions of the preceding paragraph
apply.
(4)An agreement that an action may be filed only with the courts of a foreign country may not be
invoked if those courts are unable to exercise jurisdiction by law or in fact.
(5)An agreement as referred to in paragraph (1) which covers Consumer Contract disputes that may
arise in the future is valid only in the following cases:
(i)if the agreement provides that an action may be filed with the courts of the country where the
Consumer was domiciled at the time the Consumer Contract was concluded (except in the case set
forth in the following item, any agreement that an action may be filed only with a court of such a
country is deemed not to preclude the filing of an action with a court of any other country);
(ii)if the Consumer, in accordance with said agreement, has filed an action with the courts of the
agreed-upon country, or if an Enterprise has filed an action with the Japanese courts or with the courts
of a foreign country and the Consumer has invoked said agreement.
(6)An agreement as referred to in paragraph (1) which covers Individual Civil Labor Dispute that may
arise in the future is valid only in the following cases:
(i)if the agreement is made at the time a labor contract ends, and establishes that an action may be
filed with the courts of the country where the place that the labor was being provided as of that time is
located (except in the case set forth in the following item, an agreement that an action may be filed
only with the courts of such a country is deemed not to preclude the filing of an action with the courts
of any other country);
(ii)if the worker, in accordance with said agreement, files an action with the courts of the agreed-upon
country; or if the enterprise files an action with the Japanese courts or with the courts of a foreign
country and the worker invokes said agreement.
(Jurisdiction Based on Appearance)
Article 3-8If the defendant presents an oral argument on the merits of the case or enters a statement in
preparatory proceedings without entering the affirmative defense that the Japanese courts lack
jurisdiction, the courts have jurisdiction.
(Dismissal without Prejudice Due to Special Circumstances)
Article 3-9Even when the Japanese courts have jurisdiction over an action (except when an action is
filed based on an agreement that only permits an action to be filed with the Japanese courts), the court
may dismiss the whole or part of an action without prejudice if it finds that there are special
circumstances because of which, if the Japanese courts were to conduct a trial and reach a judicial
decision in the action, it would be inequitable to either party or prevent a fair and speedy trial, in
consideration of the nature of the case, the degree of burden that the defendant would have to bear in
responding to the action, the location of evidence, and other circumstances.
(Exclusion from Application in the Case of Exclusive Jurisdiction)
Article 3-10The provisions of Articles 3-2 to 3-4 and Articles 3-6 to the preceding Article do not apply
if law or regulation provides for the exclusive jurisdiction of the Japanese courts over the action in
question.
(Examination of Evidence by the Court Sua Sponte)
Article 3-11A court may conduct an examination of the evidence sua sponte with regard to matters
that concern the jurisdiction of the Japanese courts.
(Basis of Timing for Determining Jurisdiction)
Article 3-12Whether the Japanese courts have jurisdiction is determined on the basis of the time at
which an action is filed
(Jurisdiction over an Action Involving a Patent Right)
Article 6(1)In an action involving a patent right, utility model right, a layout-design exploitation right
for an integrated circuit, or an author's right to a work of computer programming (hereinafter referred
to as an "Action Involving a Patent Right, etc."), if a court listed in the first portion of either of the
following items would have jurisdiction pursuant to the provisions of the preceding two Articles, the
action is under the exclusive jurisdiction of the court specified in the latter portion of said item:
(i)a district court located within the territorial jurisdiction of the Tokyo High Court, the Nagoya High
Court, the Sendai High Court, or the Sapporo High Court:the Tokyo District Court;
(ii)a district court located within the territorial jurisdiction of the Osaka High Court, the Hiroshima
High Court, the Fukuoka High Court, or the Takamatsu High Court:the Osaka District Court.
(2)In an Action Involving a Patent Right, etc., if a summary court located within the territorial
jurisdiction of a court listed in the first portion of one of the items of the preceding paragraph would
have jurisdiction pursuant to the provisions of the preceding two Articles, the action may also be filed
with the court specified in the latter portion of said item.
(3)An appeal to the court of second instance against a final judgment that the court specified in
paragraph (1), item (ii) has entered as the court of first instance in an Action Involving a Patent Right,
etc., is under the exclusive jurisdiction of the Tokyo High Court; provided, however, that this does not
apply to an appeal to the court of second instance against a final judgment in an action if litigation has
been transferred pursuant to the provisions of Article 20-2, paragraph (1).
(Jurisdiction over an Action Involving a Design Right)
Article 6-2With regard to an action involving design rights, trademark rights, author's rights
(excluding author's rights to a work of computer programming), publishing rights, neighboring rights,
or breeder's rights, or an action for infringement of a business interest due to unfair competition
(meaning unfair competition as prescribed in Article 2, paragraph (1) of the Unfair Competition
Prevention Act (Act No. 47 of 1993)), if a court listed in the first portion of either of the following
items has jurisdiction pursuant to the provisions of Article 4 or Article 5, the action may also be filed
with the court specified in the latter portion of said item:
(i)a court set forth in paragraph (1), item (i) of the preceding Article (other than the Tokyo District
Court):the Tokyo District Court;
(ii)a court set forth in paragraph (1), item (ii) of the preceding Article (other than the Osaka District
Court):the Osaka District Court.
(Jurisdiction over a Joint Claim)
Article 7If multiple claims are involved in a single action, the action may be filed with a court that,
pursuant to the provisions of Article 4 to the preceding Article (excluding Article 6, paragraph (3)),
has jurisdiction over one of those claims; provided, however, that with regard to an action brought by
two or more persons or an action brought against two or more persons, this applies only in the case
specified in the first sentence of Article 38.
(Calculation of the Value of the Subject Matter of Litigation)
Article 8(1)If jurisdiction is determined by the value of the subject matter of litigation pursuant to
the Court Act (Act No. 59 of 1947), the value is calculated on the basis of the interest alleged in the
action.
(2)If it is impossible or extremely difficult to calculate the value as referred to in the preceding
paragraph, the value is deemed to exceed 1,400,000 yen.
(Calculation of the Value in a Joint Claim)
Article 9(1)If multiple claims are involved in a single action, the total value of the claims is the value
of the subject matter of litigation; provided, however, that this does not apply to each claim if the
interest alleged in the action is common to all claims.
(2)If a claim upon the fruits of something or a claim for damages, penalties, or expenses is an
incidental subject matter of litigation, its value is not included in the calculation of the value of the
subject matter of the litigation.
RUSSIA

Russia – 2 Courts that adjudicate commercial matter

Russian Civil Court and Arbitral Commercial Court
If the Arbitration Clause is Null and Void – RCC ceases jurisdiction
Russian CPC A. 402 – Applied by Analogy
Russian APC A. 247
Who May Sue – International Jurisdiction
General Jurisdiction
Defendant’s Domicile/Place of Business, Where the CoA arose and Prorogation
Exclusive Jurisdiction – Immovable Property, Where the company is incorporated, Public
Entry Registry, IPR Registration
Submission can be implicit, Prorogation is explicit
A. 404 APC and A. 249 CPC – Prorogation
RCC’s jurisdiction can be ousted through prorogation or submitting to a foreign court’s
jurisdiction. However, O&M
Forum Non Conveniens – Not Applicable in Russia
RUSSIAN CPC
Article 402. Application of the Rules for cognisance
1. Unless otherwise established in the rules of the present Chapter, the cognisance of cases
with the participation of foreigners to the courts in the Russian Federation is defined in
accordance with the rules of Chapter 3 of the present Code.
2. The courts in the Russian Federation consider cases involving foreigners, if the defendant
organization is situated on the territory of the Russian Federation or if the defendant citizen
has his place of residence in the Russian Federation.
3. The courts in the Russian Federation also have the right to consider cases involving
foreigners, if: 1) the management body, an affiliate or a representation of the foreign person is
situated on the territory of the Russian Federation; 2) the defendant has property situated on
the territory of the Russian Federation; 3) the plaintiff in a case on the exaction of alimony
and on the establishment of paternity has his place of residence in the Russian Federation;
4) the damage is caused on the territory of the Russian Federation or the plaintiff has his
place of residence in the Russian Federation in a case on the recompense of the damage
caused by a serious injury or by other harm to health, or by the death of the bread-winner;
5) an action or other circumstance which has served as the grounds for filing a claim for the
recompense of the damage in a case on the compensation for the damage inflicted upon the
property has taken place on the territory of the Russian Federation;
6) the claim stems from an agreement in accordance with which the full or partial execution
shall take place or has taken place on the territory of the Russian Federation;
7) the claim stems from an unjust enrichment which has taken place on the territory of the
Russian Federation;
8) the plaintiff in a case on the dissolution of a marriage has his place of residence on the
territory of the Russian Federation, or if eithier of the spouses is a Russian citizen;
9) the plaintiff in a case on the protection of the honour, dignity and business reputation has
his place of residence in the Russian Federation.
Article 403. Exclusive cognisance of Cases Involving Foreigners
1. To the exclusive cognisance of the courts in the Russian Federation are referred:
1) cases on the right to immovable property situated on the territory of the Russian
Federation;
2) the cases on disputes arising from a contract of shipment, if the shippers are on the
territory of the Russian Federation;
3) the cases on the dissolution of a marriage of Russian citizens with foreign citizens or with
stateless persons, if both spouses have their place of residence in the Russian Federation;
4) the cases envisaged in Chapters 23-26 of the present Code.
2. The courts in the Russian Federation shall consider the cases of the special proceedings, if:
1) the applicant in a case on the establishment of the fact of juridical importance has his place
of residence in the Russian Federation, or the fact which it is necessary to establish is taking
place or has taken place on the territory of the Russian Federation;
2) the citizen with respect to whom an application is filed for adoption (for a son or for a
daughter), for the restriction of a citizen's legal competence or for recognizing him as legally
incapable, or for recognizing an underaged person as completely legally competent
(emancipation), for forcible hospitalization into a mental hospital, for extension of the time
term for the forcible hospitalization of a citizen suffering from a mental disorder, or for a
forcible psychiatric examination, is a citizen of, and has his place of residence in, the Russian
Federation;
3) the person with respect to whom an application is filed for recognizing him as missing or
for declaring him as the deceased, is a Russian citizen or had his last known place of
residence in the Russian Federation, and if on the resolution of the given question depends
the establishment of the rights and duties of the citizens who have their place of residence in
the Russian Federation, or of the organizations which have their place of location in the
Russian Federation;
4) an application is filed for recognizing an object located on the territory of the Russian
Federation as ownerless or for acknowledging the right of municipal ownership to an
ownerless immovable object located on the territory of the Russian Federation;
5) an application is filed for recognizing as invalid the lost bearer or order security issued by
a citizen or to a citizen who has his place of residence in the Russian Federation, or by an
organization or to an organization located on the territory of the Russian Federation, and for
the restoration of rights to it (the summons procedure).
Article 404. Agreed cognisance of Cases Involving Foreigners 1. The parties in a case
involving foreign person have the right to reach an agreement on changing the cognisance of
the case (the prorogation of jurisdiction) before the court accepts it for its proceedings.
2. The cognisance of the cases with the participation of foreigners established in Articles 26,
27, 30 and 403 of the present Code cannot be changed by the parties' agreement.

RUSSIAN APC
Chapter 32. The Competence of Arbitration Courts in the Russian Federation on an
Investigation of Cases with the Participation of Foreign Persons
Article 247. Competence of Arbitration Courts in the Russian Federation on Cases with the
Participation of Foreign Persons
1. The arbitration courts in the Russian Federation shall investigate cases on economic
disputes and the other cases involved in the performance of business and other economic
activity with the participation of foreign organizations, of international organizations, of
foreign citizens or of stateless persons engaged in business and other economic activity
(hereinafter referred to as foreign persons), if:
1) the defendant stays or resides on the territory of the Russian Federation, or the defendant's
property is located on the territory of the Russian Federation;
2) the management body, affiliate or representation of the foreign person is situated on the
territory of the Russian Federation;
3) the dispute has arisen from an agreement whose execution shall take place or has taken
place on the territory of the Russian Federation;
4) the claim has arisen from the infliction of damage upon property by an action or other
circumstance which has taken place on the territory of the Russian Federation;
5) the dispute has arisen from an unjust enrichment, which has taken place on the territory of
the Russian Federation;
6) the plaintiff, in a case on the protection of business reputation, is situated on the territory
of the Russian Federation;
7) the dispute has arisen from relations involved in the circulation of securities, the emission
of which has taken place on the territory of the Russian Federation;
8) the applicant, in a case on the establishment of a fact of legal importance, points out the
existence of this fact on the territory of the Russian Federation;
9) the dispute has arisen from relations involved in the state registration of the names and of
the other objects, and in rendering services on World Wide Web - the Internet - on the
territory of the Russian Federation;
10) in the other cases, if there exists a close relation between the disputed legal relation and
the territory of the Russian Federation.
2. Arbitration courts in the Russian Federation shall also investigate economic disputes and
other cases connected with business and other economic activity with the participation of
foreign persons and referred to their exclusive competence in conformity with Article 248 of
this Code.
3. Arbitration courts in the Russian Federation shall also consider cases in conformity with
the parties' agreement, concluded in accordance with the rules established in Article 249 of
this Code.
4. A case accepted by the arbitration court for its consideration, with the observation of the
rules formulated in the present Article, shall be investigated by it on merit, even if in the
course of the action at law on the case in connection with a change of the place of stay or of
the place of residence of the persons, taking part in the cases, or with other circumstances, it
will be referred to the competence of a foreign court.
Article 248. Exclusive Competence of Arbitration Courts in the Russian Federation in Cases
with the Participation of Foreign Persons
1. To the exclusive competence of the arbitration courts in the Russian Federation in cases
with the participation of foreign persons shall be referred the following causes:
1) those on the disputes concerning property in state ownership of the Russian Federation,
including disputes involved in the privatisation of state property and in the forcible alienation
of the property for state needs;
2) those on disputes whose object is immovable property, if this property is located on the
territory of the Russian Federation, or the rights to it;
3) those on disputes involved in the registration or in the issue of patents, in the registration
and issue of certificates on trademarks, industrial samples and useful models, or in the
registration of other rights to results of intellectual activity, which require the registration or
issue of a patent or of a certificate in the Russian Federation;
4) those on disputes on recognizing as invalid entries in state registers (in books of records or
in cadastres), made by a competent body of the Russian Federation which is keeping such
state register (book of records or cadastre);
5) those on the disputes concerning the institution, liquidation or registration on the territory
of the Russian Federation of legal entities or of individual businessmen, as well as
questioning the decisions of these legal entities's bodies.
2. To the exclusive competence of the arbitration courts in the Russian Federation are also
referred the cases with the participation of foreign persons stipulated in Section III of this
Code which arise from administrative or other public legal relations.
Article 249. Agreement on Delineating the Competence of Arbitration Courts in the Russian
Federation
1. If the parties, if only a single one of which is a foreign person, have concluded an
agreement, while laying down in it that an arbitration court in the Russian Federation
possesses competence for the investigation of a dispute involved in the performance by them
of business or other economic activity, that has already arisen or that may arise, the
arbitration court in the Russian Federation shall possess the exclusive competence for an
investigation of the given dispute on the condition that such agreement does not modify the
exclusive competence of a foreign court.
2. The agreement on an exclusive competence shall be concluded in written form.
China
Chinese International Commercial Court and Chinese Civil Court – Both are competent to
adjudicate commercial matters.
No Appeal from the CICC. CICC _ Defendant’s domicile needn’t be proved.
CPL – Chinese Procedural Law – Application by Analogy
A. 22-25 CPL – Jurisdiction
Similar to A. 4 and 25 of the Brussels regulation.
Defendant’s Domicile, Place of Business, CoA, Prorogation
CPL doesn’t govern Hong Kong and Macau
Prorogation – A. 35
Exclusive Jurisdiction – A. 36
Chinese Procedural Law
Article 22 The following civil actions shall come under the jurisdiction of the people's court
of the place where the plaintiff is domiciled; if the plaintiff's place of domicile is different
from the place of his or her habitual residence, the people's court in the place of his or her
habitual residence shall have jurisdiction:
1. actions concerning personal relationships instituted against persons not residing within the
territory of the People's Republic of China;
2. actions concerning personal relationships instituted against persons whose whereabouts are
unknown or who have been declared missing;
3. actions instituted against persons who are undergoing compulsory correction; and
4. actions instituted against persons who are imprisoned.
Article 23 An action involving a contractual dispute shall come under the jurisdiction of the
people's court of the place where the defendant is domiciled or where the contract is
performed.
Article 24 An action involving a dispute over an insurance contract shall come under the
jurisdiction of the people's court of the place where the defendant is domiciled or where the
insured object is located.
Article 25 An action involving a negotiable instrument shall come under the jurisdiction of
the people's court of the place where payment on the instrument was made or where the
defendant is domiciled.
Article 35 When two or more people's courts have jurisdiction over an action, the plaintiff
may institute his or her action in one of those people's courts; if the plaintiff institutes the
action in two or more people's courts with jurisdiction over the action, the people's court that
first puts the case on its trial docket shall have jurisdiction.
Section 3 Referral and Designation of Jurisdictions
Article 36 If a people's court discovers that a case it has accepted is not within its jurisdiction,
it shall refer the case to the people's court with jurisdiction, which shall accept the case. If a
people's court to which a case is referred considers that the case does not come under its
jurisdiction in accordance with regulations, it shall report to the superior people's court for
designation of jurisdiction and shall not further refer the case at its own discretion.
HCCCA – 1,2,3,5,6

Convention – binding – adopted in all or nothing fashion

Unlike model laws – UNCITRAL – not binding – piecemeal adoption
EU – aceeded
China – only signed
Regulates prorogation/derogation inter se contracting states

Pillars
A.5 – obligation of chosen court in contracting state
6- duty obligation of non chosen court in contracting state
8/9 – recognition of judgement pursuant to CoCA
5 – court can only rely on lis alibi pendens or forum non conveniens
Exception: agreement void u/ national law (brussels a.25)
CoCA’s nullity/voidity must be checked, seperability however main contract and CoCA are
usually interconnected and latter also gets vitiated
ii) under law of chosen state, chose country but cannot tamper with laws of that country

6 – if both EU states then brussels

6(a) – if chosen court has passed a judgement that agreement is null and void/ non chosen
court may do own finding
b) capacity to contract u/ non chosen court’s law(seized courts law)
c) manifestly contradictory to the public policy of the chosen court, fraud doesn’t shake the
conscience of the court
d) force majeure – court cant execute CoCA
e) chosen court has decided not to hear the case – res judicata in one jurisdiction not
another
Hague CCCA PROVISIONS

Article 1 Scope
(1) This Convention shall apply in international cases to exclusive choice of court agreements
concluded in civil or commercial matters.
(2) For the purposes of Chapter II, a case is international unless the parties are resident in the
same Contracting State and the relationship of the parties and all other elements relevant to
the dispute, regardless of the location of the chosen court, are connected only with that State.
(3) For the purposes of Chapter III, a case is international where recognition or enforcement
of a foreign judgment is sought.

Article 2 Exclusions from scope

(1) This Convention shall not apply to exclusive choice of court agreements –
a) to which a natural person acting primarily for personal, family or household purposes (a
consumer) is a party;
b) relating to contracts of employment, including collective agreements.
(2) This Convention shall not apply to the following matters –
a) the status and legal capacity of natural persons;
b) maintenance obligations;
c) other family law matters, including matrimonial property regimes and other rights or
obligations arising out of marriage or similar relationships;
d) wills and succession;
e) insolvency, composition and analogous matters;
f) the carriage of passengers and goods;
g) marine pollution, limitation of liability for maritime claims, general average, and
emergency towage and salvage;
h) anti-trust (competition) matters;
i) liability for nuclear damage;
j) claims for personal injury brought by or on behalf of natural persons;
k) tort or delict claims for damage to tangible property that do not arise from a contractual
relationship;
l) rights in rem in immovable property, and tenancies of immovable property;
m) the validity, nullity, or dissolution of legal persons, and the validity of decisions of their
organs;
n) the validity of intellectual property rights other than copyright and related rights;
o) infringement of intellectual property rights other than copyright and related rights, except
where infringement proceedings are brought for breach of a contract between the parties
relating to such rights, or could have been brought for breach of that contract;
p) the validity of entries in public registers.
(3) Notwithstanding paragraph 2, proceedings are not excluded from the scope of this
Convention where a matter excluded under that paragraph arises merely as a preliminary
question and not as an object of the proceedings. In particular, the mere fact that a matter
excluded under paragraph 2 arises by way of defence does not exclude proceedings from the
Convention, if that matter is not an object of the proceedings.

Ex: review petition or preliminary questions that can be reopened will be covered under this
convention.

(4) This Convention shall not apply to arbitration and related proceedings.
(5) Proceedings are not excluded from the scope of this Convention by the mere fact that a
State,
including a government, a governmental agency or any person acting for a State, is a party
thereto.
(6) Nothing in this Convention shall affect privileges and immunities of States or of
international organisations, in respect of themselves and of their property.

Article 3
Exclusive choice of court agreements
For the purposes of this Convention –
a) “exclusive choice of court agreement” means an agreement concluded by two or more
parties that meets the requirements of paragraph c) and designates, for the purpose of
deciding disputes which have arisen or may arise in connection with a particular legal
relationship, the courts of one Contracting State or one or more specific courts of one
Contracting State to the exclusion of the jurisdiction of any other courts;
b) a choice of court agreement which designates the courts of one Contracting State or
one or more specific courts of one Contracting State shall be deemed to be exclusive
unless the parties have expressly provided otherwise;
c) an exclusive choice of court agreement must be concluded or documented –
i) in writing; or
ii) by any other means of communication which renders information accessible so as to be
usable for subsequent reference;
c) an exclusive choice of court agreement that forms part of a contract shall be treated as
an agreement independent of the other terms of the contract. The validity of the
exclusive choice of court agreement cannot be contested solely on the ground that the
contract is not valid.

Exclusive COCA means the language of the agreement will show:

1. shall
2. only
3. use of words such as “exclusive”

If the language uses “or”, this is not exclusive.

Article 5 Jurisdiction of the chosen court

(1) The court or courts of a Contracting State designated in an exclusive choice of court
agreement shall have jurisdiction to decide a dispute to which the agreement applies,
unless the agreement (agreement here means the COCA and not the entire agreement)
is null and void under the law of that State (chosen State).
(2) A court that has jurisdiction under paragraph 1 shall not decline to exercise
jurisdiction on the ground that the dispute should be decided in a court of another
State.
(3) The preceding paragraphs shall not affect rules –
a) on jurisdiction related to subject matter or to the value of the claim;
b) on the internal allocation of jurisdiction among the courts of a Contracting State. However,
where the chosen court has discretion as to whether to transfer a case, due
consideration should be given to the choice of the parties.

Art 5(3) means that it doesn’t affect/ tamper the jurisdiction rules as to which court (lower,
high or supreme court) will have jurisdiction in that particular chosen court.

The chosen court is obligated to assume jurisdiction over the matter.

It cannot deny jurisdiction based on concepts such as lis alibi pendens/ forum non
convenience.

Exception: if the agreement is null & void under the law of that State. This is similar to
Brussels Art. 25.

In most cases, the COCA is so linked with the whole agreement that if the whole agreement is
void, then most of the time the COCA is also void. However, the COCA is separable from the
rest of the agreement and its nullity and voidability must be judged individually.

Article 6
Obligations of a court not chosen

A court of a Contracting State other than that of the chosen court shall suspend or dismiss
proceedings to which an exclusive choice of court agreement applies unless –
a) the agreement is null and void under the law of the State of the chosen court;
b) a party lacked the capacity (competency of parties) to conclude the agreement under the
law of the State of the court seized (check the national laws of the court seized);
c) giving effect to the agreement would lead to a manifest injustice or would be
manifestly contrary (scandalous) to the public policy (such as violation of principles
of natural justice) of the State of the court seized (non-chosen court);
d) for exceptional reasons (ex: force majeure – wars, COVID-19 etc.) beyond the control
of the parties, the agreement cannot reasonably be performed; or
e) the chosen court has decided not to hear the case. This happens when chosen court is
bound by res judicata principles applying for the same dispute then the chosen court
will not hear the matter and the non-chosen court can take up the case.

If the States involved are EU states (example France & Germany), then apply Brussels.

If the States involved are EU and Non-EU states, then apply Hague CCCA.

Indian courts said fraud is not a manifest contradiction to public policy.

Note: Under private international law, first judgement has more enforceability value than
subsequent judgements.

Article 8
Recognition and enforcement
(1) A judgment given by a court of a Contracting State designated in an exclusive choice of
court agreement shall be recognised and enforced in other Contracting States in
accordance with this Chapter. Recognition or enforcement may be refused only on the
grounds specified in this Convention.
(2) Without prejudice to such review as is necessary for the application of the provisions of
this Chapter, there shall be no review of the merits of the judgment given by the court of
origin. The court addressed shall be bound by the findings of fact on which the court of origin
based its jurisdiction, unless the judgment was given by default.
(3) A judgment shall be recognised only if it has effect in the State of origin, and shall be
enforced only if it is enforceable in the State of origin.
(4) Recognition or enforcement may be postponed or refused if the judgment is the subject of
review in the State of origin or if the time limit for seeking ordinary review has not expired. A
refusal does not prevent a subsequent application for recognition or enforcement of the
judgment.
(5) This Article shall also apply to a judgment given by a court of a Contracting State
pursuant to a transfer of the case from the chosen court in that Contracting State as
permitted by Article 5, paragraph 3. However, where the chosen court had discretion as to
whether to transfer the case to another court, recognition or enforcement of the judgment
may be refused against a party who objected to the transfer in a timely manner in the
State of origin.

Article 9
Refusal of recognition or enforcement
Recognition or enforcement may be refused if –
a) the agreement was null and void under the law of the State of the chosen court, unless the
chosen court has determined that the agreement is valid;
b) a party lacked the capacity to conclude the agreement under the law of the requested State;
c) the document which instituted the proceedings or an equivalent document, including the
essential elements of the claim,
i) was not notified to the defendant in sufficient time and in such a way as to enable him to
arrange for his defence, unless the defendant entered an appearance and presented his
case without contesting notification in the court of origin, provided that the law of the State
of origin permitted notification to be contested; or
ii) was notified to the defendant in the requested State in a manner that is incompatible with
fundamental principles of the requested State concerning service of documents;
d) the judgment was obtained by fraud in connection with a matter of procedure;
e) recognition or enforcement would be manifestly incompatible with the public policy of the
requested State, including situations where the specific proceedings leading to the judgment
were incompatible with fundamental principles of procedural fairness of that State;
f) the judgment is inconsistent with a judgment given in the requested State in a dispute
between the same parties; or
g) the judgment is inconsistent with an earlier judgment given in another State between the
same parties on the same cause of action, provided that the earlier judgment fulfils the
conditions necessary for its recognition in the requested State.
Rome 1
Applicable law
Court not permitted to apply lex fori (law of the forum) automatically, it is only applicable
when it is determined to be applicable. Done through application of a country's own
private international law.
Court characterises the claim - contractual or non-contractual (closely related to contractual
rights) (duty of care, promise not disturb peace = non-voluntary assignment of rights)
Based on this characterisation, the court ascertains whether to apply the governing law
Courts have to give due respect to laws of other countries.
Proof of foreign law must be given:
Civil law (inquisitorial law) - judge to take suo motto cognizance of the law; judges to find
content of the foreign law themselves - question of law
Common law (adversarial law) - lawyers to argue on governing law, if arguments not made
on governing law then lex fori applied automatically - question of fact
Contractual disputes:
3 steps
1. Express choice of law: if the parties have expressly displayed their choice then
barring very few exceptions then court will have to respect that choice except brazil -
always applies domestic law (party autonomy)
2. Implied / tacit choice: intention of the parties - facts and circumstances of the case -
contract silent on governing law. Ex: Previous transactions and contracts; arb. Agr.
Limitation to these choices : a) public policy - fundamental notions of morality and
justice - court is authorised to disregard foreign law - shakes the conscience of the court -
Public policy only of the forum
and
b. overriding mandatory norm - mandatory provisions - directive of legislature to its
judiciary - OMN is of the forum and where the contract is being performed (mostly) -
court will only restrict the application of foreign law to the extent of the breach of
OMN and not disregard foreign law entirely

2. Low and high threshold for implied choice

High if court only looks at terms of contract and draws connections - you cannot simply
extend arbitration choice of law without other factors
Low if court applies on the basis of extraneous factors

3. Objective connecting factors

When parties have not made a choice of law expressly or implicitly, court will objectively
identify law. Different across jurisdiction, one thing common - closest and most real
connection test
Non - contractual obligation:
Types:
1. Infringements of intellectual property
2. Damages caused to the environment
3. Extensions of contract
4. Many more…..
5. Forum approached should have well-defined rules.
Rome 1: contractual obligations
Rome 2: non-contractual obligation
Rome 1
Articles 2,3,4, 6, 9, 10, 12, 19, 21
Article 3: express and implied choice
Implied choice - high threshold - clearly/manifestly would show high threshold
Different laws to govern different parts of contract provided they are separable
Parties can chose hard law not soft law - article 3 r.w recital 13 - choice of soft law
prevented but soft law can be incorporated by reference
Parties can change governing law till dispute arises

A 21 - court to apply their own public policy

A 9 - OMN (overriding mandatory norms)

A 3(3) - if majority elements of contract are located in a country whose law is not of
choice, court is obligated to consider OMN's of that country
A 3(4) - same 3(3) but for EU community law (European conventions) specifically

A 4 - objective connecting factors

Closest and most real connection
EU prescribes characteristic performance test to establish which country has the closest
and most real connection to the contract
Only Characteristic performance is considered performance for the purpose of
identification of governing law - performance for which payment is due
Performer's law is habitual residence of the performer
4(1) - common examples
4(3) - if the habitual residence of characteristic performer has nothing to do with the
subject matter of the contract the you ought not to apply the law of that country and
apply the law of the manifestly connected more closely - escape clause
If both equal then apply 4(1)
4(4) - wherever contract gravitates if 4(1) doesn’t apply
6 - consumer contracts
Choice of law will be applied provided the consumer is not deprived of protections
available to the consumer in their own country, if higher protection is provided by the
domestic law of the consumer then the higher protection is applied till the point it is
derogatory.
If no choice then consumer's law is applied if manufacturer is trading in the consumer's
country
 A 12 - scope of applicable law
d. Governing law will also determine the limitation of the contract. Limitation is seen as
substantive law by most civil law countries.
Common law sees it as procedural law.
Right and remedy alive together, if remedy not available then right to sue is also
extinguished for the same cause of action

ROME 1 PROVISION

Recital
(13) This Regulation does not preclude parties from incorporating by reference into their
contract a non-State body of law or an international convention

Article 2
Universal application
Any law specified by this Regulation shall be applied whether or not it is the law of a Member
State.

CHAPTER II
UNIFORM RULES

Article 3
Freedom of choice
1. A contract shall be governed by the law chosen by the parties. The choice shall be made
expressly or clearly demonstrated by the terms of the contract or the circumstances of the
case. By their choice the parties can select the law applicable to the whole or to part only of
the contract.
2. The parties may at any time agree to subject the contract to a law other than that which
previously governed it, whether as a result of an earlier choice made under this Article or of
other provisions of this Regulation. Any change in the law to be applied that is made after the
conclusion of the contract shall not prejudice its formal validity under Article 11 or adversely
affect the rights of third parties.
3. Where all other elements relevant to the situation at the time of the choice are located in a
country other than the country whose law has been chosen, the choice of the parties shall not
prejudice the application of provisions of the law of that other country which cannot be
derogated from by agreement.
4. Where all other elements relevant to the situation at the time of the choice are located in
one or more Member States, the parties' choice of applicable law other than that of a Member
State shall not prejudice the application of provisions of Community law, where appropriate as
implemented in the Member State of the forum, which cannot be derogated from by
agreement.
5. The existence and validity of the consent of the parties as to
the choice of the applicable law shall be determined in
accordance with the provisions of Articles 10, 11 and 13.

Article 4
Applicable law in the absence of choice
1. To the extent that the law applicable to the contract has not been chosen in accordance
with Article 3 and without prejudice to Articles 5 to 8, the law governing the contract shall be
determined as follows:
(a) a contract for the sale of goods shall be governed by the law of the country where the
seller has his habitual residence;
(b) a contract for the provision of services shall be governed by the law of the country where
the service provider has his habitual residence;
(c) a contract relating to a right in rem in immovable property or to a tenancy of immovable
property shall be governed by the law of the country where the property is situated;
(d) notwithstanding point (c), a tenancy of immovable property concluded for temporary
private use for a period of no more than six consecutive months shall be governed by the law
of the country where the landlord has his habitual residence, provided that the tenant is a
natural person and has his habitual residence in the same country;
(e) a franchise contract shall be governed by the law of the country where the franchisee has
his habitual residence;
(f) a distribution contract shall be governed by the law of the country where the distributor
has his habitual residence;
(g) a contract for the sale of goods by auction shall be governed by the law of the country
where the auction takes place, if such a place can be determined;
(h) a contract concluded within a multilateral system which brings together or facilitates the
bringing together of multiple third-party buying and selling interests in financial instruments,
as defined by Article 4(1), point (17) of Directive 2004/39/EC, in accordance with non-
discretionary rules and governed by a single law, shall be governed by that law.
2. Where the contract is not covered by paragraph 1 or where the elements of the contract
would be covered by more than one of points (a) to (h) of paragraph 1, the contract shall be
governed by the law of the country where the party required to effect the characteristic
performance of the contract has his habitual
residence.
3. Where it is clear from all the circumstances of the case that the contract is manifestly more
closely connected with a country other than that indicated in paragraphs 1 or 2, the law of
that
other country shall apply.
[Link] the law applicable cannot be determined pursuant to paragraphs 1 or 2, the contract
shall be governed by the law of the country with which it is most closely connected.

Article 6
Consumer contracts
1. Without prejudice to Articles 5 and 7, a contract concluded by a natural person for a
purpose which can be regarded as being outside his trade or profession (the consumer) with
another 4.7.2008 EN Official Journal of the European Union L 177/11 person acting in the
exercise of his trade or profession (the professional) shall be governed by the law of the
country where the consumer has his habitual residence, provided that the
professional:
(a) pursues his commercial or professional activities in the country where the consumer has
his habitual residence, or
(b) by any means, directs such activities to that country or to several countries including that
country, and the contract falls within the scope of such activities.
2. Notwithstanding paragraph 1, the parties may choose the law applicable to a contract
which fulfils the requirements of paragraph 1, in accordance with Article 3. Such a choice may
not, however, have the result of depriving the consumer of the protection afforded to him by
provisions that cannot be derogated from by agreement by virtue of the law which, in the
absence of choice, would have been applicable on the basis of
paragraph 1.
3. If the requirements in points (a) or (b) of paragraph 1 are not fulfilled, the law applicable to
a contract between a consumer and a professional shall be determined pursuant to Articles 3
and
4. Paragraphs 1 and 2 shall not apply to:
(a) a contract for the supply of services where the services are to be supplied to the consumer
exclusively in a country other than that in which he has his habitual residence;
(b) a contract of carriage other than a contract relating to package travel within the meaning
of Council Directive 90/ 314/EEC of 13 June 1990 on package travel, package holidays and
package tours (1);
(c) a contract relating to a right in rem in immovable property or a tenancy of immovable
property other than a contract relating to the right to use immovable properties on a
timeshare basis within the meaning of Directive 94/47/EC;
(d) rights and obligations which constitute a financial instrument and rights and obligations
constituting the terms and conditions governing the issuance or offer to the public and public
take-over bids of transferable securities, and the subscription and redemption of units in
collective investment undertakings in so far as these activities do not constitute provision of a
financial service;
(e) a contract concluded within the type of system falling within the scope of Article 4(1)(h).

Article 9
Overriding mandatory provisions
1. Overriding mandatory provisions are provisions the respect for which is regarded as crucial
by a country for safeguarding its public interests, such as its political, social or economic
organisation, to such an extent that they are applicable to any situation falling within their
scope, irrespective of the law otherwise applicable to the contract under this Regulation.
2. Nothing in this Regulation shall restrict the application of the overriding mandatory
provisions of the law of the forum.
3. Effect may be given to the overriding mandatory provisions of the law of the country where
the obligations arising out of the contract have to be or have been performed, in so far as
those overriding mandatory provisions render the performance of the contract unlawful. In
considering whether to give effect to those provisions, regard shall be had to their nature and
purpose and to the consequences of their application or non-application.

Article 10
Consent and material validity
1. The existence and validity of a contract, or of any term of a contract, shall be determined
by the law which would govern it under this Regulation if the contract or term were valid.
2. Nevertheless, a party, in order to establish that he did not consent, may rely upon the law
of the country in which he has his habitual residence if it appears from the circumstances that
it would not be reasonable to determine the effect of his conduct in accordance with the law
specified in paragraph 1.

Article 12
Scope of the law applicable
1. The law applicable to a contract by virtue of this Regulation shall govern in particular:
(a) interpretation;
(b) performance;
(c) within the limits of the powers conferred on the court by its procedural law, the
consequences of a total or partial breach of obligations, including the assessment of damages
in so far as it is governed by rules of law;
(d) the various ways of extinguishing obligations, and prescription and limitation of actions;
(e) the consequences of nullity of the contract.
2. In relation to the manner of performance and the steps to be taken in the event of
defective performance, regard shall be had to the law of the country in which performance
takes place.

Article 19
Habitual residence
1. For the purposes of this Regulation, the habitual residence of companies and other bodies,
corporate or unincorporated, shall be the place of central administration. The habitual
residence of a natural person acting in the course of his business activity shall be his principal
place of business.
2. Where the contract is concluded in the course of the operations of a branch, agency or any
other establishment, or if, under the contract, performance is the responsibility of such a
branch, agency or establishment, the place where the branch, agency or any other
establishment is located shall be treated as the place of habitual residence.
3. For the purposes of determining the habitual residence, the relevant point in time shall be
the time of the conclusion of the contract.

Article 21
Public policy of the forum
The application of a provision of the law of any country specified by this Regulation may be
refused only if such application is manifestly incompatible with the public policy (ordre public)
of the forum.
Contracting Parties (incl. REIOs and States bound by its approval) to this Convention [Protocol] that are also
Members of the HCCH (i.e., the Organisation) are in bold; Contracting Parties that are not Members of the
HCCH are in italics.

Contracting Party* S1 R/A/Ap/Su2

Albania 13-II-2024 25-VI-2024

Austria

Belgium

Bulgaria

China 12-IX-2017

Croatia

Cyprus

Czech Republic

Denmark 30-V-2018

Estonia
Contracting Party* S1 R/A/Ap/Su2

European Union 1-IV-2009 11-VI-2015

Finland

France

Germany

Greece

Hungary

Ireland

Israel 3-III-2021

Italy

Kosovo 19-IX-2024

Latvia

Lithuania

Luxembourg

Malta

Mexico 26-IX-2007

Montenegro 5-X-2017 18-IV-2018

Netherlands

North Macedonia 9-XII-2019

Poland
 Contracting Party* S1 R/A/Ap/Su2

Portugal

Republic of Moldova 14-III-2024

Romania

Singapore 25-III-2015 2-VI-2016

Slovakia

Slovenia

Spain

Sweden

Switzerland 18-IX-2024

Ukraine 21-III-2016 28-IV-2023

United Kingdom of Great Britain and Northern Ireland 28-IX-2020

United States of America 19-I-2009

* (incl. REIOs and States bound by its approval)

1) S = Signature
2) R/A/Su = Ratification, Accession or Succession
3) Type = R: Ratification;

A: Accession;
A*: Accession giving rise to an acceptance procedure; click on A* for details of acceptances of the accession;
AEU: Accession by the European Union
AEU*: State bound as a result of the accession by the European Union
ApEU: Approval by the European Union
ApEU*: Bound as a result of the approval by the European Union
A**: Objection
C: Continuation;
Su: Succession;
Den: Denunciation;

4) EIF = Entry into force

5) EXT = Extensions of application
6) Authorities per Convention = Designation of Authorities
7) Res/D/N/DC = Reservations, declarations, notifications or depositary communications
RUSSIA

Russian chinese japan korea are based on Rome 1

1210, 1211 (1,2.1,2.9,2.10,2.17, 2.18 and 9), 1212 - CCRF

Paragh 26,28,29,30,32,36 - ruilings

1210

[Link] - high threshold - "clearly ensued"

[Link] elements of contract are located in one country but governing law is of another, OMN of the former
country cannot be breached

1211

When no choice of law altogether - characteristic performance test is applicable but escape clause could applied
to override the characteristic performance test

JAPAN

A 7, 8, 9, 11 and 42

Civil law system – inspired by EU law system – inquisitorial system – foreign law determined suo motto by the
court

Original Act – Horei, 1898; replaced in 2011 by – “JAPAN'S PRIVATE INTERNATIONAL LAW: Act on the
General Rules of Application of Laws” in order for continuity of Japanese choice of law rules

India is operating in isolation unlike other countries who have special legislations for international disputes

Article 7 [Choice of Applicable Law by the Parties] The formation and effect of a juristic act shall be governed
by the law of the place chosen by the parties at the time of the act.
Can chose expressly but no clarity on implied

Article 8 [In the Absence of a Choice of Applicable Law by the Parties]

(1) Where there is no choice under the preceding Article, the formation and effect of a juristic act shall be
governed by the law of the place with which the act is most closely connected at the time of the act.

(2) For the purpose of the preceding paragraph, where only one party is to effect the characteristic performance
of the juristic act, it shall be presumed that the juristic act is most closely connected with the law of his or her
habitual residence (i.e., the law of his or her place of business where that place of business is related to the act,
or the law of his or her principal place of business where he or she has two or more places of business related to
the act and where those laws differ).

(3) For the purpose of the first paragraph of this Article, where the subject matter of the juristic act is
immovables, notwithstanding the preceding paragraph, it shall be presumed that the act is most closely
connected with the law of the place where the immovables are situated.

Greater discretion with court of identifying the characteristic performer

No escape clause

Rome 1 had fix-tile rules and an escape clause but both use law of characteristic performer

Article 9 [Variation of Applicable Law by the Parties] The parties may vary the law otherwise applicable to the
formation and effect of a juristic act. However, such variation shall not be asserted against third parties where it
would be prejudicial to their rights.

Article 11 [Special Rules for Consumer Contracts]

(1) Regarding the formation and effect of a contract (excluding labor contracts; hereinafter referred to in this
Article as “consumer contract”) between a consumer (i.e., an individual, excluding those cases where the party
acts as a business or for a business) and a business operator (i.e., a juridical person or other corporate
association, or an individual in those cases where the party is acting as a business or for a business), even where
by choice under Article 7 or variation under Article 9, the applicable law would be a law other than that of the
consumer’s habitual residence, when the consumer indicates to the business operator his or her intention that a
particular mandatory rule from within the law of the consumer’s habitual residence should apply, this mandatory
rule shall also apply to the matters covered by the rule concerning the consumer contract’s formation and effect.
(2) Notwithstanding Article 8, where no choice under Article 7 has been made, the formation and effect of a
consumer contract shall be governed by the law of the consumer’s habitual residence.

(3) In regards to the formation of a consumer contract, even where a law other than the law of a consumer’s
habitual residence is chosen under Article 7, when the consumer indicates to the business operator his or her
intention that a particular mandatory rule from within the law of the consumer’s habitual residence should apply
to the formalities of the consumer contract, only the mandatory rule shall apply to the matters covered by the
rule concerning the consumer contract’s formalities, irrespective of Article 10, paragraphs 1, 2, and 4.

(4) Where the law of a consumer’s habitual residence is chosen under Article 7 with regards to the formation of
a consumer contract, and when the consumer indicates to the business operator his or her intention that the law
of the consumer’s habitual residence should only apply to the formalities of a consumer contract, the formalities
of the consumer contract shall be governed only by the law of the consumer’s habitual residence, irrespective of
Article 10, paragraphs 2 and 4.

(5) Notwithstanding Article 10, paragraphs 1, 2, and 4, where there is no choice under Article 7 with regards to
the formation of the contract, the formalities of a consumer contract shall be governed by the law of the
consumer’s habitual residence.

(6) The preceding paragraphs shall not apply in any of the following cases: (i) Where the business operator’s
place of business that is associated with a consumer contract is in a place under a law that is different from the
law of the consumer’s habitual residence, and where the consumer comes to a place that has the same law as that
place of business to conclude the contract. However, excluding cases where the consumer, who is in the place of
his or her habitual residence, is invited by the business operator to conclude the consumer contract in the place
that has the same law as the place of business; (ii) Where the business operator’s place of business that is
associated with a consumer contract is in a place under a law that is different from the law of the consumer’s
habitual residence, and where the consumer has received or should receive the performance of all obligations
under the consumer contract in a place that has the same law as that place of business. However, excluding cases
where the consumer, who is in the place of his or her habitual residence, is invited by the business operator to
have all obligations performed under the consumer contract in a place that has the same law as that place of
business; (iii) Where at the time of contracting the business operator did not know the consumer’s habitual
residence and there were reasonable grounds for not knowing this; or (iv) Where at the time of contracting the
business operator mistook the other party of the contract for not being a consumer and there were reasonable
grounds for this mistake.

Court will not suo motto check deprivation of rights of the consumer unlike Rome I where court suo motto
checks if the consumer’s rights have been deprived.

Article 42 [Public Policy (Ordre Public)] Where a case should be governed by a foreign law but application of
those provisions would contravene public policy (ordre public), those provisions shall not apply.

A 42 – public policy

The law is not as developed as in Rome I but better than India

South Korea

A. 18, 19, 20, 23, 45, 46, 47

Article 18 (Application of Foreign Law)

The court shall examine and apply, ex officio, the details of the foreign law determined to be the applicable law
under this Act and may request a party's cooperation for the purpose.

Article 20 (Mandatory Application of Law of Republic of Korea)

The mandatory provisions of the Republic of Korea to govern the corresponding legal relationship, irrespective
of the applicable law, in light of the purpose of legislation, shall also apply where a foreign law is designated as
the applicable law under this Act.

OMN of South Korea

Article 23 (Provisions of Foreign Law Contrary to Social Order)

Where a foreign law shall govern but the application of the provisions of the foreign law is clearly contrary to
good morals and other public order of the Republic of Korea, the provisions shall not apply.

Public Policy of South Korea

Article 45 (Party Autonomy)

(1) A contract shall be governed by the law chosen, explicitly or implicitly, by the parties: Provided, That the
implicit choice shall be limited where reasonable recognition can be achieved, in consideration of the content of
the contract and all other circumstances.

(2) The parties may choose the law applicable only to part of the contract.
(3) The parties may change, by agreement, the applicable law under this Article or Article 46: Provided, that any
change in the applicable law following the conclusion of the contract shall not affect the validity of the contract
type and the right of a third party.

(4) Where all the elements are related to one country only, but the parties choose the law of another country
instead, the application of the mandatory provisions of the relevant country shall not be excluded -

(5) Article 49 shall apply mutatis mutandis to the establishment and validity of an agreement between the parties
on the choice of the applicable law.

They can choose explicitly or implicitly (high threshold)

Article 46 (Objective Connection to Determine Applicable Law)

(1) Where the parties to a contract do not choose the applicable law, the contract shall be governed by the law of
the country most closely related to the contract.

(2) Where a party to a contract is to perform any of the following under the contract, the law of the country, in
which the habitual residence of the party is located, at the time of the conclusion of the contract (the law of the
country in which the principal office is located, where the party is a corporation or organization), shall be
presumed to be most closely related: Provided, That where the contract is concluded in connection with the
party's occupation or business activities, the law of the country, in which the place of business of the party is
located, shall be presumed to be most closely related:

1. In cases of assignment contracts, the performance as the assignor;

2. In cases of use contracts, the performance as the party who provides objects or rights

for use;

3. In cases of delegation contracts, outsourcing contracts, or other similar contracts for the provision of services,
the performance of the services.

(3) In cases of a contract on the right to immovable property, the law of the country, in which the immovable
property is located, shall be presumed to be most closely related.

Characteristic performance test – same as Rome 1

Article 47 (Consumer Contract)

(1) Even where the parties to a consumer contract choose the applicable law, the protection given to the
consumer pursuant to the mandatory provisions of the country in which the habitual residence of the consumer
is located shall not be deprived.

(2) Where the parties to a consumer contract do not choose the applicable law, the law of the habitual residence
of the consumer shall govern, notwithstanding Article 46.

(3) Notwithstanding Article 31 (1) through (3), the method of a consumer contract shall be governed by the law
of the habitual residence of the consumer.

Same as Rome 1

China

2013 – opened up borders to internation disputes hence more complicated

Both SPC and LOAL go hand-in-hand

A.3, 4, 18, 7 and 41 – LOAL (2010)

A.5 – rules (2007)
ARTICLE 3 The parties may explicitly choose the law applicable to their foreign-related civil
relation in accordance with the provisions of this law.

Can expressly choose but not implied

ARTICLE 4 Where a mandatory provision of the law of the People’s Republic of China (“PRC”)
exists with respect to a foreign-related civil relation, that mandatory provision shall be applied
directly.

OMN only of China

ARTICLE 7 Limitation period is governed by the law that should be applicable to the foreign-
related civil relation.

ARTICLE 18 The parties may by agreement choose the law applicable to their arbitration
agreement. Absent any choice by the parties, the law of the place where the arbitration
institution locates or the law of the seat of arbitration shall be applied.

ARTICLE 41 The parties may by agreement choose the law applicable to their contract. Absent
any choice by the parties, the law of the habitual residence of a party whose performance of
obligation is most characteristic of the contract or the law that most closely connected with
the contract shall be applied.

Article 5(Rules)

In case the parties concerned fail to choose a law applicable to contractual disputes, the law o
f the country or region with the closest connection thereto shall be the applicable law. When
determining the law applicable to contractual disputes in accordance with the principle of
using that with the closest connection, the people's court shall determine the law of the
country or region having the closest connection with the contract as the applicable law of a
contract in light of the particularities of the contract and that the performance of contractual
obligations by one party concerned can best embody the essential characteristic of the
contract, etc.. (1)
As for contracts of sale, the applicable law shall be the law of domicile of the seller at the time
of contract conclusion. In case a contract is concluded after
negotiation at the domicile of the buyer, or the contract clearly prescribes that the seller shall
fulfill the consignment obligation at the domicile of the buyer, the law
of domicile of the buyer shall be the applicable law. (2)
As for contracts on processing with supplied materials, assembling with supplied parts and ot
her processing work, the law of domicile of the processor shall be the applicable law. (3)
As for contracts on supplying plant equipments, the law of the place of installation shall be th
e applicable law. (4)
As for contracts on the sale, lease or mortgage of real estate, the law of the place of the real e
state shall be the applicable law. (5)
As for contracts on the lease of movables, the law of domicile of the lessor shall be the applic
able law. (6)
As for contracts on pledge of movables, the law of domicile of the pledgee shall be the applica
ble law. (7)
As for contracts on borrowing, the law of domicile of the lender shall be the applicable law. (8)
As for insurance contracts, the law of domicile of the insurer shall be the applicable law.
Select Rules of the Supreme People's Court on Related Issues concerning the Application of
Law in Hearing Foreign-Related Contractual Dispute Cases (9)
As for financial leasing contracts, the law of domicile of the lessee shall be the applicable law.
(10)
As for contracts on construction projects, the law of the place of construction project shall be t
he applicable law. (11)
As for warehousing or safekeeping contracts, the law of domicile of the warehouseman or kee
per shall be the applicable law. (12)
As for contracts on guaranty, the law of domicile of the guarantor shall be the applicable law.
(13)
As for entrustment contracts, the law of domicile of the mandatary shall be the applicable law
. (14)
As for contracts on issuance, sale and transfer of bonds, the law of the place of issuance of bo
nds, the law of the place of sale of bonds and the law of the place of
transfer of bonds shall respectively be the applicable law. (15)
As for contracts on auction, the law of the place where the auction is held shall be the applica
ble law. (16)
As for contracts on brokerage, the law of domicile of the broker shall be the applicable law.
(17)
As for contracts on intermediation, the law of domicile of the intermediary shall be the applica
ble law.

In case any contract above is of obvious and closest connection to another country or region,
the law of the country or region shall prevail. – escape clause

If before the court, both parties present arguments based on foreign law that has not been
expressly agreed to then courts adjudicate on that basis (although legislation does not allow
it)

INDIA

Proper law of contract – common law :: applicable law/governing law - civil law

UK post Brexit did not go back to judge made common law system, they replicated Brussels,
Rome 1 and Rome 2 into their own law

India – Purely judge made Pvt. Int. law

Adversarial system – lawyer has to plead foreign law, no suo motto application of foreign law.
Parties have to bring expert evidence (case law, commentary, expert witness). By default,
Indian law is applicable.

Governing law:

1-Express

2-Implied

3-Objective connecting factors

Principles of choice of law not codified. Most decisions before HC hence of persuasive value
bcoz matters go before SC only if question of law. If before SC mostly passed as orbiter and
since orbiter one doesn’t know its appln in practise.

Express Choice of law

National Thermal Power Corporation v. Singer Company [ (1992) 3 SCC 551]

Parties can choose governing law. Parties chose English law and court affirmed it. [parties
must have pleaded it otherwise default rule applies]. Proper law of contract – legal system
that parties have explicitly or impliedly chosen and in its absence the law of the country with
the closest and most real connection to the contract. [legal system – hard law not soft ]

Kumarina Investment Ltd v. Digital Media Convergence Ltd. & Another, Petition
No. 221(C) of 2010

Orbiter – Choice of non-binding legal systems not allowed referring to Recital 13 of Rome 1
stating that rome 1 also does not allow it but u can incorporate by reference.
Implied Choice of law

Law of Arb Ag. – interpretation, validity and scope of arbitration ag.

Curial law (law of the seat) – lex arbitri – procedure of the arb. (part 1 of A&C act) – venue
(place of arbitration) and seat (supervising court) – both have to be expressly specified, if seat
not chosen then tribunal choses seat on basis of closest and most real connection. Venue
cannot be extended to seat as venue chosen on the basis of convenience.

Proper Law of Contract(PLC) – governs rights and liabilities of the parties

Most modern contracts are badly drafted, likely to not have the PLC –

Pre NTPC – low threshold, post - high threshold

NTPC v Singer Company (1992), sreeeji traco and hardy

Orbiter – if parties have not chosen the PLC, the court will regard law of the arb ag as implied
choice of law only if arb ag’s law has connections to parties and/or their transactions (in cases
of arbitration)

If parties have not chosen PLC, the court will regard COCA as implied choice of law (stupid) (in
cases of litigation)

If parties have not chosen PLC and not chosen law of arb. Ag then Curial law becomes law of
arb. Ag. Only if curial law has been explicitly chosen; if court has chosen curial law then court
will find out the PLC based on closest connection and then apply that to the arb. Ag. If curial
law is institutional based then law of seat is taken.

If parties have chosen PLC and Curial law then PLC applies to Arb Ag.

Objective Connecting Factors

closest and most real connection test – imputed intention of party – done by localising the
contract (NTPC orbiter) – looking at contract in its entirety and all the elements of the contract
and seeing where the contract gravitates which is the imputed intention of the party

Before NTPC, court applied closest and most real connection for implied and objective
connecting factors

British India Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries,

(1990) 3 SCC 481 (overruled by NTPC)

Pasl Wind Solutions Private Limited vs Ge Power Conversion India, AIRONLINE 2021
SC 213

Union Of India Ministry Of Petroleum vs Hardy Exploration And Production, 2019

(13) SCC 472

Taprogge Gesellschaft MBH v. IAEC India Ltd, AIR 1988 Bom 157

Sumitomo (1998) – valid till 2020 SC

Dosco India SC

Enercon

BRICS – 317, 318, 321, 322, 323 and 324 pg