"Exclusive Jurisdiction Clauses – A New Zealand Perspective on the Hague Convention on Choice of Court Agreements"
G Shapira and R Lazarovitch, 2008
Exclusive jurisdiction clauses are a frequently used tool in transnational contracts. The parties agree on a forum that would hear any potential dispute. This should ensure certainty and predictability for all parties. However, the complexity of the New Zealand rules and the jurisdictional discretion of the courts lead to often unpredictable results when exclusive jurisdiction clauses are encountered. The 2005 Hague Convention on Choice of Court Agreements aims to address such problems with clear rules that promote certainty in commercial dealings and validate party autonomy. Even though the Convention is not free from criticism, the authors conclude that New Zealand should nonetheless adopt it.
John Fellas, 1996
In a brief comment on Telemedia Partners Worldwide Ltd v Hamelin Limited SDNY, February 6, 1996, the author provides guidelines for New Zealand practitioners in regard to the drafting of suitable jurisdiction and choice of law clauses in international contracts involving the US.
Michelle Ong, 2013
In this article, the author advocates for the routine enforcement of jurisdiction clauses based on the fundamental principles of respect for party autonomy and freedom of contract. The author criticises the courts’ current approach to the categorisation of jurisdiction clauses under the labels of exclusive and non-exclusive and suggests an alternative, more nuanced approach. Further criticism is focused on the courts’ failure to apply consistent tests in deciding whether or not to exercise jurisdiction. The Trans-Tasman Treaty is commended for its insistence on stricter enforcement of jurisdiction clauses however the author argues that there is scope to go further. In this context the author compares the Hague Convention on Choice of Court Agreements and the Trans-Tasman Treaty.