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. Keywords Australia; Conflict of laws; Forum non conveniens; Jurisdiction. Access Status Only available to University of Melbourne staff and students, login required. The third part examines how the principles on declining jurisdiction operate in practice. Default rules of jurisdiction which are likely to indicate a strong connection between the forum and the dispute are proposed.
Specific principles for declining jurisdiction are also proposed. This context has important implications for the law and practice of jurisdiction, which have largely been overlooked in the literature, although they are important in understanding how the principles have developed and how they are applied. Collections Melbourne Law School – Theses . The fifth part considers how Australian jurisdictional principles could be improved. Copyright in the thesis remains with the author. This thesis critically analyses the Australian law of jurisdiction in private international litigation.
This thesis is in five related parts. The first part examines the procedural and constitutional context in which the principles of jurisdiction have been developed and applied.
Author Baker, Clifton Sydney. Abstract Until the Australian cases on the doctrine of forum non conveniens had followed the English case. These analyses identify factors which appear to influence decisions in practice, not all of which are consistent with the applicable principles. The Griffith University Higher Degree Theses Repository has a non-exclusive licence to archive, publish and communicate this thesis online. thesid
The doctrine of forum non conveniens is an offshoot of common law, which allows a court to decline its jurisdiction forkm it is of the opinion that a court of another country is more appropriate for the trial of the action. The proposed reforms identlfy grounds of exclusive jurisdiction, provide protection to weaker parties to contracts, and otherwise require the enforcement of jurisdictional agreements.
The doctrine of forum non conveniens after Owusu v. This thesis examines the historical origins of the doctrine, and its criteria for use as developed by English landmark judgments. There is now a distinctive Australian principle of forum non conveniens, which despite the inadequate reasoning leading to its adoption, has some significant practical strengths. Abstract This thesis critically analyses the Australian law of jurisdiction torum private international litigation.
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A Critical Analysis of Jurisdiction in International Litigation | EQUELLA
Keywords Australia; Conflict of laws; Forum non conveniens; Jurisdiction. The present law provides that the courts are jurisdictionally competent in a wide range of cases, which do not all require a substantial connection between the dispute and the forum. Copyright in the thesis remains with the author. This emphasises the need for critical academic study of the law of jurisdiction. The conveniebs principles applied in declining jurisdiction make it likely that the Australian courts will exercise their discretion to retain jurisdiction convdniens the majority of cases.
This thesis critically analyses the Australian law of jurisdiction in private international litigation. An analysis is made to explore whether the doctrine has any role to play eight years after this landmark judgment was given by the CJEU. The Australian principles of jurisdiction have convemiens changed substantially in the last years, while economic and social conditions which affect international litigation have undergone dramatic and wide-reaching changes.
The fifth part considers how Australian jurisdictional principles could be improved. For example, the principle requires the court to enforce foreign jurisdictional agreements unless there are strong grounds for non-enforcement.
Many important interests, especially of foreign states and of nkn, are not sufficiently taken into account.
Forum non conveniens : issues of precedent and policy
Specific principles for declining jurisdiction are also proposed. Access Status Only available to University of Melbourne staff and students, login required. Jackson, whereby the Forun dismissed the doctrine’s application within the ambit of the Brussels I Regulation is the main focus of the thesis.
The fourth part identifies the factors which ought to influence the law and practice of jurisdiction. The present principles, in short, thesos the courts to take jurisdiction in too many cases, and require them to decline to exercise jurisdiction in too few cases.
A Critical Analysis of Jurisdiction in International Litigation
Finally, by means of suggestions for reform, an attempt is made to propose ways which the European and Bon courts should follow in cases which require a stay of proceedings on the grounds of forum non conveniens. This context has important implications for the law and practice of jurisdiction, which have largely been overlooked in the literature, although they are important in understanding how the principles have developed and how they are applied.
Some features of this site may not work without it. In recent years, jurisdiction has certainly overtaken choice of law in practical importance.
My Account Login Register. This is addressed by a doctrinal and an empirical analysis of the manner in which these principles are applied by the Australian superior courts. The relevant factors are identified in terms cknveniens the interests of foreign states, individual litigants’ interests and the forum state’s interests.