Issue 4 Exclusive jurisdiction clauses

Conditions for the validity of exclusive jurisdiction clauses

Should the draft instrument allow for exclusive jurisdiction clauses?

Should exclusive jurisdiction clauses be enforceable against third parties?

Conclusions reached by the Working Group regarding exclusive jurisdiction clauses

The Industrial Relations Court has exclusive jurisdiction in labour related matters. The Industrial Relations Court has the jurisdiction to

The Panel with Exclusive Jurisdiction over Serious Criminal Offences was established in Timor Leste.

The workload of a court would also clearly be more limited if it exercised concurrent jurisdiction with national courts rather than exclusive jurisdiction.

As Chief Magistrate I also exercised exclusive jurisdiction over applications under the Gaming and Betting Acts.

That will create certain problems of interpretation regarding the application of the principle of exclusive international jurisdiction.

3. No special law or exclusive jurisdiction may be invoked to uphold impunity in respect of human rights violations.

58. The jurisdiction of the tribunal (article 22) should be exclusive and should not overlap with the jurisdiction of national courts, neither should the tribunal hear appeals against their decisions.

2. The Government of Panama supports the establishment of a permanent international criminal judicial body with compulsory and exclusive jurisdiction.

In this connection, it was pointed out that, in order to be effective, an exclusive jurisdiction clause must bind third parties.

It was suggested that this provision should be revisited once the Working Group has made its decision regarding exclusive jurisdiction clauses.

The jurisdiction of a court chosen in accordance with paragraph 1 is exclusive for disputes between the parties to the contract only if the parties so agree and the agreement conferring jurisdiction

With regard to the language on exclusive jurisdiction, it is our interpretation that it does not affect the universal jurisdiction of Member States in areas such as war crimes, torture and terrorism.

Accordingly, the United States now recognizes coastal State claims of jurisdiction over highly migratory species of tuna within the exclusive economic zone.

It also resolutely reaffirms the sovereign rights and jurisdiction of coastal States over their contiguous zone, exclusive economic zone and continental shelf.

It was suggested that the problem could be rendered less troublesome by allowing the adoption of an exclusive jurisdiction clause by the parties.

The contrary view was expressed, that exclusive jurisdiction clauses should never apply to third parties, since they were not parties to the contract.

However, concern was also expressed that recourse to arbitration might hinder the application of the rules of the draft instrument on exclusive jurisdiction.

112. Questions as to the scope and nature of coastal State jurisdiction over foreign vessels in the exclusive economic zone are arising continually.

A note of caution was raised regarding the possibility of overstating the importance of including or excluding exclusive jurisdiction clauses in the draft instrument.

In other words, the exclusion applies only where the coastal State has jurisdiction to exercise unlimited management discretion, i.e., within the exclusive economic zone.

It was thought that in situations where it was found acceptable for jurisdiction to be exclusive, it should be exclusive for all purposes under the contract of carriage, regardless of who is claiming the benefit under the contract.

Exclusive!

The recommendations adopted by the Committee are without prejudice to the right of the troop contributing countries to exercise exclusive jurisdiction over their own contingents.

If the shipper and the carrier agree that a competent court has jurisdiction to decide disputes that may arise under this Convention, then that court has non exclusive jurisdiction, provided that the agreement conferring it is concluded or documented

Being exclusive?

While it was admitted that there was a danger that exclusive jurisdiction clauses could pose a danger in adhesion contracts, it was submitted that when contracts were freely negotiated there were strong commercial reasons for making the choice of court provisions exclusive.

This, however, excludes proceedings in which the Industrial Relations Court under the Industrial and Labour Relations Act, chapter 269 of the Laws of Zambia, has exclusive jurisdiction.

It was not appropriate to establish compulsory and exclusive jurisdiction with respect to certain crimes, because that would be contrary to the relevant provisions of conventional law.

Overall, religious Courts have an exclusive jurisdiction over all matters of marriage and divorce, except when the couple is not affiliated to any religion or of different religions.

The Working Group considered the general question of whether the draft instrument should allow for parties to the contract of carriage to agree to an exclusive jurisdiction clause.

It was suggested that provisions could be included in the draft instrument requiring that certain conditions be fulfilled prior to the valid exercise of an exclusive jurisdiction clause.

Because competition agencies appear to have a comparative advantage over regulators when it comes to enforcing prohibitions of anti competitive behaviour and reviewing mergers, such agencies should have exclusive jurisdiction in those domains, or at least retain concurrent jurisdiction along with a regulator.

Exclusive economic zone

Graceful and exclusive,

Blue...or exclusive?

A smaller number of delegations expressed the strongly held view that the draft instrument should not allow parties to a contract of carriage to agree to exclusive jurisdiction clauses.

Further, it was noted that this issue was of such importance in some jurisdictions that there were domestic provisions in place to override the operation of exclusive jurisdiction clauses.

establish exclusive jurisdiction over a certain number of crimes against the peace and security of mankind which had been previously identified in a universal code binding on all States.

The issue of the jurisdiction of coastal States over highly migratory species found within their exclusive economic zones was settled by the Convention, in favour of the coastal State.

It was suggested that it would be difficult to support an exclusive jurisdiction clause that might allow the carrier in some situations to dictate jurisdiction, particularly where a remote geographic location and the costs of litigating disputes could put cargo interests at a disadvantage.