chapter  6
38 Pages

Supporting party autonomy: lis pendens, forum non conveniens and anti- suit injunctions

Party autonomy is an effective instrument to resolve the problem of conflict of jurisdiction. In the ideal scenario, where all countries have the same set of rules in deciding the validity and enforceability of a jurisdiction agreement and all courts strictly follow these rules, the existence of a valid exclusive jurisdiction clause could diminish both positive and negative conflict of jurisdiction. The chosen court is the only competent one and must take jurisdiction pursuant to the agreement, while all nonchosen fora should decline jurisdiction. However, this ideal situation does not exist. Jurisdiction agreements, as a result, cannot completely end forum shopping or conflict of jurisdiction. The traditional instruments, such as lis pendens, forum non conveniens and anti-suit injunctions, continue to be applied in cases where an exclusive jurisdiction agreement exists.1