These analyses show that there are factors which influence decisions which are not always apparent from the principles, suggesting that reform is required. Abstract Until the Australian cases on the doctrine of forum non conveniens had followed the English case. The proposed reforms identlfy grounds of exclusive jurisdiction, provide protection to weaker parties to contracts, and otherwise require the enforcement of jurisdictional agreements. The relevant factors are identified in terms of the interests of foreign states, individual litigants’ interests and the forum state’s interests. The first part examines the procedural and constitutional context in which the principles of jurisdiction have been developed and applied. Collections Melbourne Law School – Theses . This also implies that reform of the principles is warranted.
In recent years, jurisdiction has certainly overtaken choice of law in practical importance. This emphasises the need for critical academic study of the law of jurisdiction. Retention of the forum non conveniens principle is recommended, but the English principle is advocated as a more suitable and just approach. Author Baker, Clifton Sydney. JavaScrip is disabled for your browser.
Finally, by means of suggestions for reform, an attempt is made to propose ways which the European and Maltese courts should follow in cases which require a stay of proceedings on the grounds of forum non conveniens. This thesis addresses this need. Jurisdiction in international litigation froum often regarded as a procedural area of law which is less important than choice of law in practical and theoretical terms.
This thesis is intended to contribute both to a theoretical understanding of this area of law and theeis an understanding of its practical application. Copyright in the thesis remains with the author. Foreign jurisdictional agreements should be enforced by a stay unless there are strong reasons for non- enforcement. This thesis critically analyses the Australian law of jurisdiction in private international litigation.
The Australian principles of jurisdiction have not changed substantially in the last years, while economic and social conditions which affect international litigation have undergone dramatic and wide-reaching changes.
Collections Melbourne Law School – Theses . This emphasises the need for critical academic study of the law clnveniens jurisdiction. It critically analyses the present principles and conbeniens manner in which they are applied, identifies the factors which should influence the law, and proposes appropriate reforms to the principles.
A Critical Analysis of Jurisdiction in International Litigation
In practice, strong grounds are easily shown. But the application of overriding mandatory rules, even where there is a jurisdictional agreement, and the courts’ wide discretion under the Australian forum non conveniens principle make it unlikely that the courts will decline to exercise jurisdiction. The fifth part considers how Australian jurisdictional principles could be improved. Metadata Show full item record. Detailed reforms are suggested, drawing on a discussion and an evaluation of different approaches to jurisdiction, particularly drawing on the European Community’s Regulation on Jurisdiction and Judgments.
This thesis examines the historical origins of the doctrine, and its criteria for use as developed by English landmark judgments. Author Baker, Clifton Sydney. Linked Resource URL http: The doctrine of forum non conveniens is an offshoot of common law, which allows a court to decline its jurisdiction if it is of the opinion that a court of another country is more appropriate for the trial of the action.
Specific principles for declining jurisdiction are also proposed. The Griffith University Higher Degree Theses Repository has a non-exclusive licence to archive, publish and communicate this thesis online. Affiliation Melbourne Law School. Retention of the forum non conveniens principle is recommended, but the English principle is advocated as a more suitable and just approach.
The law and practice of jurisdiction are examined to determine whether those interests do in fact influence law and practice. Show full item record.
A Critical Analysis of Jurisdiction in International Litigation | EQUELLA
In particular, Australian superior courts had adopted the liberalisation of that doctrine which had taken place in England since Document Type Coursework thesis. The various principles applied in declining jurisdiction make it likely that the Australian courts will exercise their discretion to retain jurisdiction in the majority of cases.
Abstract This thesis critically analyses the Australian law of jurisdiction in private international litigation. The present law provides that the courts are jurisdictionally competent in a wide range foum cases, which do not all require a substantial connection between the dispute and the forum.
The present principles, in short, permit the courts to take jurisdiction in too fourm cases, and require them to decline to exercise jurisdiction in too few cases. This also implies that reform of the principles is warranted.