The Competent Tribunal

In modern world there is no single international or supranational tribunal settling international commercial disputes. So, such disputes are confined to a national judge determined in the certain international contract. Also the parties should choose the jurisdiction which will settle the dispute. This choice should be made under the rules of international conventions ratified by the countries of the contracting parties. This choice is regulated by the same principles as the choice of the applicable law.

1) The Principle of the intention of the parties supposes that the parties of the contract are free to choose the jurisdiction resolving possible conflicts between the parties. In the specified contract clause the parties agree at the outset of their contractual relationship which country's or countries' courts are to have legal authority ('jurisdiction') to hear disputes arising from that contract.

A jurisdiction clause may take one of three forms:

- non-exclusive jurisdiction clause – this type of clause allows the parties to submit a dispute arising from an agreement to a particular country's courts, while leaving the parties free to commence proceedings in another country's courts.

- exclusive jurisdiction clause – this type of clause provides a more restrictive framework by stipulating that any dispute can only be submitted to an agreed country's courts.

- one-way jurisdiction clause – a less commonly used clause, this type of clause stipulates that one of the parties must always bring any claim in the courts of one particular country, whereas the other party retains flexibility to bring a claim in any courts it may choose (such a clause is predominantly seen in finance agreements in which the borrower is required to bring a claim in a particular forum whilst the bank retains the right to bring a claim in any forum, most likely where the borrower's assets are located.).

To understand the difference between applicable law clause and competent tribunal clause it would be enough to imagine a quite possible situation when a dispute between a German seller and an Austrian buyer is judged on the basis of German law in a Swiss court. So, here the applicable law is German law and the competent tribunal is a Swiss court.

2) the Principle of international agreements means that establishing of the competent tribunal is based on some international agreements. Due to the absence of the single supranational of international competent tribunal under international commercial law, let's look closer at the European international law in the field of establishing jurisdiction.

Nowadays most of the European countries use so called Brussels Regime. Brussels Regime I is a set of rules on the jurisdiction and the recognition and enforcement in civil and commercial matters. It has almost replaced its predecessors: the Brussels Convention of 1968 and the Lugano Convention of 1988. The set of document included into the Brussels Regime constantly growth, but its main goal remains stable: to establish the rules for regulating which court has jurisdiction while resolving concrete conflicts under civil or commercial contract law. This Regime can be applied to the conflicts with the parties from all the EU countries (with some exceptions under different legal parts of the Regime) and the EFTA countries (Iceland, Switzerland, Norway and Denmark).

Nowadays the Brussels Regime consists of four main parts:

- Brussels Convention 1968 which is applied to the contracts between 15 EU member-states (pre-2004 member-states), including some overseas territories;

- Lugano Convention 1988 which is signed by EEC and EFTA countries

- Brussels I Regulation 2001 which amends the Brussels Convention 1968 and is applied to the parties from all the EU member-states except Denmark;

- New Lugano Convention 2007 which was signed by EU-27 countries and EFTA countries (except Lichtenstein) and which is very similar to the Brussels I regulation 2001, but it is open for joining by third countries (non-EU and non-EFTA).

In the December of 2013 the Council of the European Union decided to amend the Brussels Regulation in the context of applying it to the patent law, but it hasn't still been agreed by the European Parliament.

Also there is a new version of the Brussels Regulation adopted in 2012 which is expected to replace the previous version in 2015.

For self-study: The Brussels I regime – scope and content.

Date: 2014-12-22; view: 1075