영문목차
Acknowledgments=v
Foreword=vii
Dedication=ix
Preface=xi
Table of Cases=xxvii
Table of Statutes=xcix
Table of Statutory Instruments=cv
Table of European Legislation, International Conventions, Treaties and Protocols=cvii
Table of Secondary European Legislation=cxi
PART I
Chapter 1. Introduction
A. AGREEMENTS FOR THE RESOLUTION OF DISPUTES IN INTERNATIONAL LITIGATION AND THE DIFFERENT GOVERNING REGIMES=1.01
B. COMPARATIVE APPROACH=1.09
C. PARALLEL LITIGATION AND CLASH OF JURISDICTION=1.12
D. MULTI-TIER CLAUSES=1.20
E. MATTERS FALLING OUTSIDE THE SCOPE OF THE BOOK=1.21
Chapter 2. Overview of the European Framework
INTRODUCTION TO CHAPTER=2.01
A. THE EC TREATY=2.07
B. THE BRUSSELS I REGULATION RECAST=2.11
Preamble―general principles=2.12
Creation of unified rules of jurisdiction and recognition and enforcement of judgments is essential=2.13
Predictable and certain rules of jurisdiction=2.14
Special rules on jurisdiction to be strictly construed=2.15
Protection of weaker party in identified relationships=2.16
Autonomy of the parties is to be respected=2.17
Avoiding irreconcilable judgments=2.18
Chapter I―Scope and application=2.19
Chapter II―Jurisdiction=2.20
General provision regarding lis pendens=2.53
Rules for determining which court is first seised=2.70
Hierarchy of jurisdiction provisions=2.73
Employment Contracts=2.96
C. THE LUGANO II CONVENTION=2.99
D. ALLOCATION OF JURISDICTION WITHIN THE UNITED KINGDOM=2.117
Chapter 3. Formal Requirements of Jurisdiction, Arbitration and Mediation Agreements
INTRODUCTION TO CHAPTER=3.01
A. JURISDICTION AGREEMENTS UNDER THE BRUSSELS I REGULATION RECAST AND LUGANO II CONVENTION=3.03
Abolition of requirements as to domicile in Brussels Regulation Recast=3.10
Requirements as to conferring jurisdiction on a court or courts=3.12
Agreements for the benefit of one party only=3.18
Disputes that arise in connection with a particular legal relationship=3.19
Unless the agreement is null and void as to its substantive validity under the law of that Member State=3.20
B. JURISDICTION AGREEMENTS AT COMMON LAW=3.43
C. ARBITRATION AGREEMENTS=3.48
Provisions of English law=3.48
New York Convention and the Model Law of 1985=3.52
Recommendation regarding interpretation of New York Convention and amendments to Model Law=3.64
Recommendation regarding interpretation of New York Convention=3.65
Amendment to UNCITRAL Model Law on International Commercial Arbitration=3.71
D. MEDIATION AGREEMENTS=3.75
E. JURISDICTION AGREEMENTS UNDER THE HAGUE CONVENTION=3.76
Chapter 4. The Nature and Construction of Jurisdiction and Arbitration Agreements and Resolving Potential Conflict between Agreements
INTRODUCTION TO CHAPTER=4.01
A. THE NATURE AND DIFFERENT TYPES OF JURISDICTION AGREEMENTS=4.02
Exclusive and non-exclusive jurisdiction agreements and their nature=4.02
The nature of a jurisdiction agreement under the Brussels I Regulation Recast=4.06
Construction of jurisdiction agreements as exclusive, non-exclusive or hybrid=4.10
B. THE NATURE AND DIFFERENT TYPES OF ARBITRATION AGREEMENTS=4.17
Defining characteristics of an arbitration agreement=4.18
Nature of an agreement to arbitrate and its operation=4.24
No particular words are required to agree to submit to arbitration=4.28
Institutional arbitration=4.29
Ad hoc arbitration=4.30
Asymmetrical or one-sided agreements and options=4.31
Scott v Avery clauses=4.32
Identification of Seat=4.33
Multi-tier clauses=4.34
C. SEPARABILITY=4.36
Arbitration agreements=4.36
Jurisdiction agreements at common law=4.44
Brussels I Regulation Recast=4.49
Hague Convention on choice of court agreements=4.50
D. CONSTRUCTION AND SCOPE=4.51
Presumed intention of parties in a one contract case=4.51
Disputes under a series of contracts with differing dispute resolution provisions=4.58
Disputes or differences as the construction of or under the contract=4.61
Where one contract replaces or relates to another and settlement agreements=4.62
Set-off and counterclaims=4.64
Consequences of disputes falling outside the scope=4.68
Characterisation of claims=4.69
E. RESOLVING POTENTIAL CONFLICT OR POTENTIAL AMBIGUITY IN ARBITRATION AND COURT JURISDICTION AGREEMENTS=4.71
Multiple party disputes―parallel arbitration agreements=4.71
Resolving potential ambiguity in dispute resolution agreements=4.77
Non-existent or poorly defined institutions=4.86
F. DISCHARGE OF ARBITRATION OR JURISDICTION AGREEMENT=4.87
G. ARBITRATION AGREEMENT AND THE HUMAN RIGHTS ACT=4.89
Chapter 5. Incorporation of Jurisdiction and Arbitration Agreements
INTRODUCTION TO CHAPTER=5.01
A. INCORPORATION OF INDUSTRY-STANDARD TERMS=5.04
B. INCORPORATION OF A JURISDICTION OR ARBITRATION AGREEMENT FROM ONE CONTRACT INTO ANOTHER=5.13
Incorporation of terms as between two parties from prior contracts=5.25
Is the dispute resolution agreement aptly worded to permit incorporation?=5.26
Identification of terms to be incorporated=5.27
Incorporated contract not concluded at date of subject contract=5.31
Clash between express terms and incorporated terms=5.32
C. INCORPORATION OF ONE PARTY'S STANDARD TERMS AND CONDITIONS=5.33
Standard terms incorporated by reference into contract in writing=5.37
Post-contractual reference to standard terms=5.41
Course of dealing=5.43
Trade usage=5.45
Battle of forms=5.46
Chapter 6. Choice of Law and Dispute Resolution Agreements
INTRODUCTION TO CHAPTER=6.01
A. IDENTIFICATION OF THE DIFFERENT APPLICABLE LAWS IN PROBLEMS CONCERNING DISPUTE RESOLUTION AGREEMENTS AND THEIR ENFORCEMENT=6.02
B. THE RELEVANCE OF A JURISDICTION OR ARBITRATION AGREEMENT IN DETERMINING THE GOVERNING SUBSTANTIVE LAW IN THE ABSENCE OF EXPRESS CHOICE=6.13
Jurisdiction agreements=6.17
Arbitration agreements=6.22
C. THE PRINCIPLES WHICH DETERMINE THE LAW GOVERNING A JURISDICTION OR ARBITRATION AGREEMENT=6.27
Common law principles applicable to both jurisdiction and arbitration agreements=6.29
D. ARBITRATION, THE PROCEDURAL LAW AND CHOICE OF SEAT=6.37
E. MATTERS DETERMINED BY THE GOVERNING LAW=6.43
Matters determined by the governing substantive law=6.44
Matters determined by the governing law of the dispute resolution agreement=6.52
Matters determined by the law governing the arbitration reference=6.57
F. DISPUTE RESOLUTION AGREEMENTS AND SO-CALLED FLOATING PROPER LAWS=6.58
G. THE MEANING OF A SYSTEM OF LAWS IN THE CONTEXT OF DISPUTE RESOLUTION AGREEMENTS=6.63
Arbitration agreements=6.64
Jurisdiction agreements and governing substantive disputes=6.67
Chapter 7. Parties to the Dispute Resolution Agreements ; Who is Bound and Who can Enforce?
INTRODUCTION TO CHAPTER=7.01
A. ASSIGNMENT/DIRECT ACTION AND SUBROGATION=7.04
Arbitration agreement=7.08
Direct actions=7.14
Exclusive jurisdiction agreement at common law=7.15
Article 25 of the Brussels I Regulation Recast and Lugano II Convention=7.19
B. STATUTORY TRANSFER, UNIVERSAL SUCCESSION AND NOVATION=7.26
Statutory transfer=7.26
Universal succession=7.30
Novation=7.31
C. CONTRACT (RIGHTS OF THIRD PARTIES) ACT 1999=7.32
Arbitration agreements=7.33
Jurisdiction agreements at common law=7.35
Article 23 of the Brussels I Regulation Recast and Lugano II Convention=7.36
Exclusion or limitation of liability and Himalaya clauses=7.38
D. NON-SIGNATORY AND ADDITIONAL PARTIES=7.42
E. FRAUD AND PIERCING CORPORATE VEIL=7.52
F. MISNOMER OF NAMED PARTY=7.57
G. MULTI-PARTY CONTRACTS=7.61
H. JOINDER=7.63
I. CLASS ACTION IN ARBITRATION=7.66
Chapter 8. Relationship with International Convention
INTRODUCTION TO CHAPTER=8.01
A. DEROGATION FROM PROVISIONS OF INTERNATIONAL CONVENTION OR STATUTE=8.02
Carriage of goods by sea=8.03
International carriage of cargo, passengers and baggage by air=8.13
CMR Convention of the International Carriage of Goods by Road=8.19
B. INTERPLAY OF THE BRUSSELS I REGULATION RECAST AND SPECIALISED INTERNATIONAL CONVENTION=8.27
C. INTERPLAY BETWEEN THE HAGUE CONVENTION AND OTHER RELATED INTERNATIONAL INSTRUMENTS=8.40
PART II
Chapter 9. Commencement of Proceedings or Arbitration and Service out of the Jurisdiction
INTRODUCTION TO CHAPTER=9.01
A. COMMENCEMENT OF PROCEEDINGS IN COURT=9.02
B. SERVICE OF PROCEEDINGS WITHIN THE JURISDICTION OR BY THE CONTRACTUALLY AGREED METHOD=9.03
C. SERVICE OF PROCEEDINGS OUTSIDE THE JURISDICTION UNDER THE BRUSSELS I REGULATION RECAST OR LUGANO II CONVENTION WITHOUT PERMISSION=9.04
D. OBTAINING PERMISSION TO SERVE A CLAIM FORM OUTSIDE OF THE JURISDICTION (CASES FALLING OUTSIDE THE BRUSSELS I REGULATION RECAST AND LUGANO II CONVENTION)=9.11
Jurisdiction gateway=9.14
Serious issue to be tried on the merits=9.20
England and Wales is the appropriate forum for the trial of the action=9.21
Service of claim form=9.22
E. COMMENCEMENT OF ARBITRATION AND CONSTITUTING THE TRIBUNAL=9.23
Commencement of arbitration=9.23
Commencement and time-limits=9.27
Extension of time for commencement of arbitration or dispute resolution procedures=9.29
Number and appointment of arbitrators=9.33
Chapter 10. Stay and Declining Jurisdiction (Jurisdiction Agreements)
INTRODUCTION TO CHAPTER=10.01
A. EXCLUSIVE JURISDICTION AGREEMENTS AT COMMON LAW=10.03
Effective of express agreement that chosen forum is forum conveniens=10.14
Strong cause to override parties' bargain=10.15
Time-bar=10.16
Multiplicity of proceedings and lis alibi pendens=10.17
Real risk of injustice in the chosen court=10.29
No available relief in English court or absence of compulsory application of foreign law=10.30
No defence to claim and no genuine desire for trial in chosen court=10.31
Re-litigation of issues in stay application=10.32
Submission to foreign court or delay in seeking stay=10.34
B. NON-EXCLUSIVE JURISDICTION AGREEMENTS AT COMMON LAW=10.35
C. INHERENT JURISDICTION OF THE COURT TO CONTROL THE ORDER OF PARALLEL LITIGATION=10.37
D. EXCLUSIVE JURISDICTION AGREEMENTS UNDER THE HAGUE CONVENTION=10.38
E. THE BRUSSELS I REGULATION RECAST AND LUGANO II CONVENTION=10.47
The principles relating to acceptance of jurisdiction under art.25 under the Brussels I Regulation Recast=10.48
Proceedings brought in a Member State Court other than the chosen court=10.58
Proceedings brought in a Member State Court in breach of a choice of court agreement in favour of a third state (non EU)=10.64
Proceedings in a Member State Court and lis pendens in a third state=10.78
Lugano II Convention governing principles=10.82
F. PROCEDURE―APPLICATION TO STAY OR CHALLENGE TO JURISDICTION=10.86
Disputed jurisdiction―service out of the jurisdiction with permission=10.86
Court orders on disposal of application=10.89
Submission to jurisdiction=10.91
Application for stay of proceedings=10.92
Brussels I Regulation Recast―challenge to jurisdiction=10.94
Chapter 11. Stay (Arbitration Agreements)
INTRODUCTION TO CHAPTER=11.01
A. APPLICATION FOR STAY UNDER S.9 OF THE ARBITRATION ACT 1996=11.04
Section 9(1)=11.07
Section 9(2) : An application may be made notwithstanding the need to exhaust other dispute resolution procedures prior to arbitration=11.38
Section 9(3) : Limitations on the bringing of an application=11.42
Section 9(4) : "the court shall grant a stay unless satisfied that the arbitration agreement is null and void, inoperative, or incapable of being performed"=11.45
Null and void=11.48
Inoperative=11.50
Incapable of being performed=11.52
Section 9(5) : Scott v Avery clauses=11.53
B. INTERFACE OF STAY APPLICATIONS AND THE BRUSSELS I REGULATION RECAST=11.55
C. APPLICATIONS FOR STAY UNDER THE ARBITRATION (INTERNATIONAL INVESTMENTS DISPUTES) ACT 1966=11.60
D. COURT'S INHERENT JURISDICTION TO STAY PROCEEDINGS AND CASE MANAGEMENT OF PARALLEL OR RELATED COURT AND ARBITRAL PROCEEDINGS=11.61
Chapter 12. Restraining Injunctions and Orders
INTRODUCTION TO CHAPTER=12.01
A. EARLY HISTORY AND DEVELOPMENT OF PRINCIPLE=12.07
B. MODERN DEVELOPMENT AND PRINCIPLE=12.18
Summary of principles applicable to alternative forum cases=12.27
Summary of principles applicable to single forum cases=12.28
C. ANTI-SUIT INJUNCTIONS AND INVASION OF A LEGAL RIGHT NOT TO BE SUED=12.30
D. ANTI-SUIT INJUNCTION AND NON-EXCLUSIVE JURISDICTION AGREEMENTS=12.40
E. THE BRUSSELS I REGULATION RECAST AND LUGANO II CONVENTION=12.51
Turner v Grovit=12.51
Application to art.25 agreements=12.58
Limits of prohibition=12.59
F. THE BRUSSELS I REGULATION AND INJUNCTIONS TO RESTRAIN BREACH OF AN ARBITRATION AGREEMENT=12.61
Anti-suit injunctions and the Brussels I Regulation Recast in relation to arbitration=12.77
G. ANTI-SUIT INJUNCTIONS AND OBSERVATIONS ON COMITY=12.79
H. THE HAGUE CONVENTION=12.83
I. RESTRAINT OF ARBITRATION BY INJUNCTION=12.84
Injunction in support of legal or equitable right not to have claims brought in arbitration=12.85
Attempts to restrain arbitration on grounds of vexation or oppression=12.87
J. VEXATION AND OPPRESSION AND PARTICULAR FORMS OF INJUNCTION=12.95
Restraining enforcement of foreign judgment=12.96
Restraint of re-litigation or attempts to set aside an award=12.99
Mandatory injunction to discontinue and not re-commence=12.103
Restraint of assignees/subrogated claimants=12.104
Restraint of foreign disclosure proceedings or deposition taking=12.105
Anti-anti-suit injunction=12.109
Restraint of third-party proceedings=12.112
Injunction to restrain third parties from assisting breach of jurisdiction/arbitration agreement=12.113
Restraint of breach of privacy obligation in arbitration=12.114
Injunctions against States=12.117
Anti-suit injunctions and Human Rights Act=12.118
K. INTERIM INJUNCTIONS, THRESHOLD TEST ON MERITS AND AMERICAN CYANAMID=12.120
L. DO THE FOREIGN PROCEEDINGS IN QUESTION AMOUNT TO A BREACH OR MERIT INJUNCTIVE RELIEF?=12.125
Statutory causes of action only available in the foreign court=12.126
Security proceedings=12.128
Foreign discovery proceedings=12.129
M. WHEN TO APPLY=12.130
N. APPLYING FOR AN INTERIM INJUNCTION=12.133
Statutory jurisdiction=12.133
Without notice application before commencement of action=12.137
On notice application after commencement of proceedings=12.145
Arbitration claim form and application for interim injunction=12.146
O. ARBITRATORS AND INTERIM MEASURES OF PROTECTION=12.149
Introduction=12.149
Tribunal's jurisdiction to make such orders=12.152
Justification for the grant of anti-suit-type orders in international arbitration=12.159
Provisional measures in investment treaty arbitrations=12.161
Principles applied by international arbitral Tribunals outside investment treaty cases=12.167
P. COMPARATIVE REVIEW=12.171
Chapter 13. Declaratory Relief and Challenges to Arbitrator's Ruling on Jurisdiction
INTRODUCTION TO CHAPTER=13.01
A. THE GRANT OF DECLARATORY RELIEF IN COURT WITH REGARD TO JURISDICTION AGREEMENTS=13.02
Affirmative declaratory relief regarding jurisdiction agreement=13.04
Negative declaratory relief=13.05
A claim for a declaration that no contract exists, where if the contract was found to exist it would contain an English law or court jurisdiction=13.09
Claims for declaratory relief in the context of the Brussels I Regulation Recast and Lugano II Convention=13.10
B. DECLARATORY ACTION AND ARBITRATION AGREEMENTS=13.13
An affirmative declaration from the court as to the substantive jurisdiction of the arbitral Tribunal=13.14
A declaration that the parties are obliged to arbitrate and not litigate their disputes=13.31
Declaratory relief, that no valid arbitration agreement has been concluded=13.32
C. ARBITRATOR'S RULING ON JURISDICTION AND CHALLENGE TO AWARD ON JURISDICTION=13.38
Arbitrator's ruling on jurisdiction=13.39
Challenge to arbitrators ruling on jurisdiction and loss of right of challenge=13.46
Loss of right to object to jurisdiction=13.54
Chapter 14. Damages
INTRODUCTION TO CHAPTER=14.01
A. PRINCIPLES GOVERNING CLAIMS FOR DAMAGES=14.02
Costs=14.05
Damages other than costs=14.13
Third parties and inducement=14.17
Damages in favour of third parties under Contracts (Rights of Third Parties) Act 1999=14.18
B. ISSUES ARISING UNDER THE BRUSSELS I REGULATION RECAST AND LUGANO II CONVENTION=14.19
Chapter 15. Enforcement of Judgments, Injunctions and Orders
INTRODUCTION TO CHAPTER=15.01
A. DECLARATORY JUDGMENTS IN THE ENGLISH COURTS=15.03
Issue estoppel=15.03
Defences to issue estoppel=15.16
Brussels I Regulation Recast=15.17
B. FOREIGN JUDGMENTS FROM THE COURTS OF NON-MEMBER STATES=15.28
Administration of Justice Act 1920=15.30
Public policy=15.31
Foreign Judgments (Reciprocal Enforcement) Act 1933=15.32
Common law action on foreign judgment=15.34
Res judicata=15.38
Statutory control of re-litigation under s.34 of the Civil Jurisdiction and Judgments Act 1982=15.42
Statutory control of overseas judgments brought in breach of agreement for the settlement of disputes=15.44
C. JUDGMENTS OF MEMBER STATE AND LUGANO CONTRACTING STATE COURTS=15.53
Judgment given in breach of an art.25 agreement=15.54
Judgment given in breach of an arbitration agreement=15.59
Judgment on merits given in breach of an arbitration agreement=15.56
D. HAGUE CONVENTION ON EXCLUSIVE CHOICE OF COURT AGREEMENTS=15.59
E. ANTI-SUIT INJUNCTIONS=15.66
Enforcement in the English courts=15.67
Brussels I Regulation Recast and Lugano II Convention=15.74
Enforcement and recognition in civil law systems=15.75
Chapter 16. Enforcement of Awards and Arbitrators' Orders
INTRODUCTION TO CHAPTER=16.01
A. ENFORCEMENT OF AWARDS MADE IN THE JURSDICTION OR OUTSIDE OF THE NEW YORK CONVENTION=16.05
Enforcement of Declaratory Awards made in England=16.05
Enforcement of substantive awards in England=16.13
B. CHALLENGES TO ENFORCEMENT OF AWARDS IN ENGLAND=16.21
Substantive jurisdiction=16.22
Serious irregularity=16.23
Tribunal or arbitral institution exceeding its powers or admitted irregularity in conduct of proceedings=16.39
Appeal on a question of law=16.52
C. ENFORCEMENT OF NEW YORK CONVENTION AWARDS=16.57
General approach to enforcement of New York Convention awards=16.62
Incapacity of a party to the arbitration agreement=16.68
Invalidity of arbitration agreement=16.72
Improper notice of appointment of arbitrator or otherwise unable to present case=16.75
Award beyond the scope of submission=16.77
Irregularity in the composition of the arbitral tribunal or failure to conduct arbitration in accordance with the applicable arbitral procedure=16.78
Award not yet binding, or has been set aside, or suspended by a competent authority of the country in which or under the law of which the award was made=16.80
Award in respect of a matter not capable of settlement by Arbitration=16.84
Contrary to public policy=16.85
D. ENFORCEMENT OF ARBITRATOR'S ORDERS=16.87
Enforcement before the Tribunal=16.88
Enforcement in the courts=16.92
Chapter 17. International Arbitration Against States
INTRODUCTION TO CHAPTER=17.01
A. PRIVATE LAW ARBITRATION AGREEMENTS WITH STATES=17.03
General legal framework for State immunity=17.03
Arbitration agreements, State immunity and court proceedings=17.07
B. ENFORCEMENT OF AN AWARD AGAINST A STATE UNDER THE NEW YORK CONVENTION=17.13
C. INVESTMENT TREATY ARBITRATION AGREEMENTS AND DISPUTE RESOLUTION PROVISIONS=17.21
Investment treaties and agreements to arbitrate disputes with investors=17.21
Governing law of the agreement to arbitrate=17.31
Rules on treaty interpretation and application to treaty arbitration agreements=17.33
Protection of an award under bilateral investment treaties=17.35
Disputes as to whether an investor can only arbitrate questions of quantum or liability and quantum=17.40
Incorporation of dispute resolution provisions from other treaties by reference to most favoured nation provisions=17.42
Fork-in-the-road=17.52
Does the existence of an underlying investment contract with an exclusive jurisdiction clause oust the jurisdiction of the investment treaty tribunal to consider similarly based investment treaty claims against the State?=17.55
Does the investment treaty tribunal have jurisdiction to determine breach of contract claims?=17.58
Can an umbrella clause elevate pure contract claims into BIT claims?=17.60
Admissibility of claims for breach of an umbrella clause in the light of exclusive jurisdiction provisions in underlying private law contract=17.65
Chapter 18. The Enforcement of Multi-tier Clauses and Provision for Alternative Dispute Resolution
INTRODUCTION TO CHAPTER=18.01
A. ENFORCEMENT BY COURTS OF ADR PROVISION=18.05
B. ARBITRATION AND MULTI-TIER CLAUSES=18.13
C. ENFORCEMENT BY ARBITRATORS=18.15
D. EU DIRECTIVE ON MEDIATION IN CIVIL AND COMMERCIAL MATTERS=18.17
APPENDICES
APPENDIX A. Regulation (EU) No 12/15/2012 of the European Parliament and of the Council=659
APPENDIX B. Brussels Regulations to the Brussels I Regulations Recast Showing Changes=707
APPENDIX C. Recommended Interpretation of New York Convention=758
APPENDIX D. UNCITRAL Model Law on International Commercial Arbitration 1985=762
APPENDIX E. Hague Convention on Choice of Court Agreements=791
APPENDIX F. German Model Treaty 2008=806
APPENDIX G. Agreement on encouragement and reciprocal protection of investments between the Kingdom of the Netherlands and the Argentine Republic=814
APPENDIX H. ASEAN Comprehensive Investment Agreement=816
APPENDIX I. Supreme Court Act 1981=818
APPENDIX J. Arbitration (International Investment Disputes) Act 1966=829
APPENDIX K. Lugano II Convention=834
Index=881