Civil Jurisdiction and Judgments

Appendix 4 Appendix IV A Note on Drafting Agreements of Choice of Court And Choice of Law Appendix IV A Note on Drafting Agreements of Choice of Court And Choice of Law The point of drafting an agreement on choice of court, or jurisdiction agreement, is to save having to litigate about where to litigate. Two principal factors will determine the level of success: the wording chosen for the clause, and the framework of laws against the background of which it is to operate. At various points in Chapters 2 , 3 and 4 we examined, in connection with the Brussels I Regulation, the Lugano II Convention and the common law, how the background laws which interpret and give effect to such agreements actually work. But whatever the law may say, need, require or allow, and whichever may be the court before which the clause may be relied on, the starting point must be for the clause to say what it needs to say. This Appendix offers a short summary of one way to draft jurisdiction agreements, followed by an example of how to do it, and how to make a better job of it. There is, after all, no rational or sensible reason for drafting imprecisely or irresolutely; and if an agreement is drafted properly, it will have the maximum effect which the law allows, even though what the law will allow is beyond the control of a drafter. It is also generally true to say that there are more ways than one of achieving a particular result. A fuller account of the approach may be found in Chapter 5 of Briggs, Agreements on Jurisdiction and Choice of Law (Oxford, 2008), together with discussion of whether elaborate drafting or pared-down drafting, is to be preferred.