Validity of International Jurisdiction Clauses in Standard Terms and Conditions
under Turkish LawDr. Tugce Nimet Yasar / Biset Sena Gunes
Ankara Yildirim Beyazit University
TurkeyThursday, 12 September – 4:00 pm
Room W 201, Faculty of Law – Professor-Huber-Platz 2, 80539 Munich–
Whilst the idea that parties to a dispute can designate the forum for their existing or future disputes dates back to the Roman law, jurisdiction agreements were refused in many jurisdictions for a long time on the grounds that jurisdiction of courts could only be established by the law based on the sovereignty of the states. Therefore, the change of jurisdiction of courts by the parties could have presented challenges to the public policy of the states. With the growth of international trade, however, the need to avoid jurisdiction problems in litigation has been increased. Thus, today, based on the party autonomy, i.e. ‘the most widely accepted private international rule of our time’, parties to a commercial transaction are allowed to choose the forum to resolve the disputes arising out of their transaction. This is also the case in the European Union and Turkey.
The Proper Law of Arbitration and Jurisdiction Agreements
Dr. Carlo de Stefano
Roma Tre University
ItalySaturday, 14 September – 9:00 am
Room V 005, Faculty of Law – Professor-Huber-Platz 2, 80539 Munich–
This paper analyses the issue of the proper law of arbitration and jurisdiction agreements, namely the law that is applicable to their substantive validity. In relation to arbitration agreements, Article V(1)(a) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 (the “New York Convention”) sets forth a two-pronged rule providing for the application of the law elected by the parties (loi d’autonomie) or, in the absence thereof, the law of the country of the seat of the arbitral proceedings or lex (loci) arbitri. While the law of the seat of arbitration is usually applied in civil law jurisdictions to determine the substantive validity of arbitration clauses, the common law of England has traditionally enforced its preference for the application of the law governing the main or matrix contract (lex contractus), especially where the latter was chosen by the parties.