Exclusive Choice of Court Agreement?
National Paradigms of International Jurisdiction

Project period: 2023-2026

Whether a choice of court agreement is exclusive or non-exclusive, when exclusivity is not expressly stated in the agreement, is subject to opposite approaches across legal systems. When applying national law, courts in Germany and England tend to interpret clauses as exclusive, whereas courts in the United States and Brazil generally regard them as non-exclusive. These divergent approaches may seem surprising, given that harmonization in this field is growing and uniform instruments presume clauses to be exclusive; but in fact, they reveal deep-seated differences between legal systems.

This research project aims to uncover and explain the reasons behind these distinct approaches to the interpretation of choice of court agreements. First, it examines how the differences are constituted through an extensive analysis of case law, investigating judicial discourse and reasoning, the relative weight of various considerations, and the final outcomes that follow. Second, it seeks to explain why these differences exist. Building on the idea of legal paradigms, it argues that the different approaches to interpretation reflect different paradigms of jurisdiction. In contrast to the relatively minor field of choice of court agreements, the law of jurisdiction is a branch of private international law in which convergence has proven difficult. This project demonstrates that the legal systems in question diverge in understanding choice of court agreements as exclusive or non-exclusive because they understand jurisdiction differently in the first place. Elucidating the connection between the underlying elements of jurisdiction in each system and the discourse surrounding the interpretation of choice of court agreements, it categorizes the various approaches into three paradigms, offering a deeper understanding of choice of court in a comparative perspective and demonstrating the potential of paradigms as a method in comparative law.