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|Other Titles:||On the Validity of the Derogation Aspect of the Forum Selection Clause|
international litigation;international jurisdiction;forum selection clause;derogation aspect;day in court;forum non conveniens;Hague Convention;EU regulation
|Issue Date:||2016-05-16 16:30:39 (UTC+8)|
This article purports to examine the derogation aspect of the forum selection clause in the context of international transactions. The Supreme Court in Taiwan recently issued three decisions on this important subject, with particular regard directed to the validity requirements, the exception to its prima facie validity, and the default rule for its interpretation. Based on the nature of the international forum selection clause and its theoretical framework, this article analyzes the soundness of the Supreme Court’s decisions from a comparative perspective and with special reference to relevant international treaties. Although in agreement with the Supreme Court’s upholding the validity of such clause, the article argues that the holdings in all three decisions should be revised. With regard to the validity requirements, as long as the chosen court can assert jurisdiction, it shall not be deemed necessary that such court recognize the validity of the forum selection clause. The requirement that the judgment issued by the chosen court will be recognized by the Taiwanese court shall also be discarded. With regard to the exception, it shall be construed to ensue that parties will not be deprived of their days in court. It is inappropriate to recognize that the court with general jurisdiction can assert jurisdiction irrespective of the forum selection clause appointing another court to exercise jurisdiction exclusively. With regard to the default rule, the forum selection clause shall be interpreted as exclusive unless the parties indicate otherwise. The article argues that in order to allow Taiwanese law keep in step with the international trend and promote the recognition of Taiwanese decisions by other countries, the Supreme Court shall change their positions as advised herein.
|Relation:||法學評論, 90, 301-354|
|Appears in Collections:||[法學評論 TSSCI] 期刊論文|
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