Introduction

The requirements a legal system may impose to give efficacy1 to choice-ofjurisdiction agreements are naturally different. In this paper, we will specially focus on agreements designating a state court though we will make some comparative references to arbitration agreements as well. Within the context of the former, it is possible to identify at least four types of requirements to the efficacy of parties' choices that may be imposed by a legal system. They are related to: (a) the form of the agreement; (b) the link between the case or the parties and the selected forum (territorial requirement); (c) substantial aspects (including policies enforcement); and (d) procedural conditions. Given the fact that requirements included in (c) and (d) are addressed, at least in part, by other panels of this Conference, we will deal primarily with those covered by (a) and (b), and only make some specific references to the other two.

The expression 'substantial aspects' makes reference to the particular restrictive regimes for certain categories of legal relationships, as well as to the total exclusion of parties' power to select a forum regarding sensitive matters. By 'procedural conditions' we refer particularly to the situations in which the efficacy of a forum selection clause is affected by previous activities of the parties before the same or another forum or by the extension of the discretionary power recognized by the judges in the assessment of their own jurisdiction.

1 Formal requirements

1. The reasons

Formal requirements of any kind are often nothing but the manifestations of old traditions. However, in this particular subject, those exigencies have always had a simple, evident goal consistent in assuring that parties have effectively consented upon the choice of a forum.2 The fact that this choice may be crucial both for the evolution of proceedings and for the very outcome of the litigation (and, in some cases, may jeopardize the right of access to justice) explains the efforts traditionally made by legal systems to provide for the evidence of the parties' will. Actually, the requirement goes even beyond the evidentiary finality to constitute a condition of validity.

If at the beginning the basic means to accomplish that goal was the exigency of the written form of the agreement, this requirement has suffered a considerable transformation due to changes in what "written" means after the irruption of technological innovations as well as in the way in which international transactions are concluded.

2. The traditional written-form requirement

The need for evidence of parties' consent is automatically associated with agreement being made in writing, and seems to be born at a time in which parties physically meet to conclude the contract. It became so rooted in some legal systems as to even generate, for certain transactions, the exigency of the intervention of a public official.3 This ultra-formal requirement for forum selection clauses should not shock since even arbitration agreements were in past times submitted to that formality.4

Arguably, the written form has traditionally been deemed to be required, even when it does not appear expressly in the same norm authorizing parties to select the court.5 Currently, this requirement is still present in many legal systems concerning express submission.6 This is easily noticeable not only by overviewing domestic rules on jurisdiction adopted in the last decades, but also by observing international and supranational instruments on the matter. However, as an expression of the evolution of jurisdictional law, the formality of a written agreement is now often accompanied by alternative options.7 In most legal systems, the right to select a court by means of a previous agreement is coupled with the recognition of the submission by appearance, i.e. when a party brings an action before a court lacking jurisdiction and the other party instead of challenging it opts for participating in the proceedings.8

3. The evolution

Two main phenomena have provoked an evolution of the form required in choice-of-court agreements. On the one hand, technological innovations in the way of communicating have introduced new forms to manifest consent. On the other hand, as a general assumption subjected to some exceptions, international contracts are no longer the product of sporadic or spontaneous relationships but mostly the result of the ordinary activity carried on by professional and repeated actors. Consequently, under the impact of the former, the notion of "written" form has deeply changed and, from the consideration of the latter, other ways of undoubted consent have arisen.

This evolution is reflected, for instance, in the differences in progressive drafting in the European system of jurisdictional law.9 Originally, article 17 of the 1968 Brussels Convention set forth that the agreement had to be 'in writing or by an oral agreement evidenced in writing.' In 1978, the text was modified (due to the accession of Denmark, Ireland and the United Kingdom, notably under the influence of the United Kingdom, which sought to facilitate the use of standards terms in contracts10) to include another possible form, only for clauses used in international trade or commerce, 'a form which accords with practices in that trade or commerce of which the parties are or ought to have been aware.' Finally, the current wording of Article 23 of the 2000 Brussels I Regulation11 stems from the modification entailed by the 1989 San Sebastian Convention, which distinguishes between the usages between parties and trade usages. Article 23 provides that:

Such an agreement conferring jurisdiction shall be either:

(a) in writing or evidenced in writing; or

(b) in a form which accords with practices which the parties have established between themselves; or

(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.

The Brussels I Regulation has only completed these three options by specifying that '[A]ny communication by electronic means which provides a durable record of the agreement shall be equivalent to writing.' Thus, in about 20 years, the text has been adapted to the necessity not only of technological evolution, but mainly to the way business is done.12 It is worthy to note that article 25 of the Recast Regulation has not changed a word from the provisions relating to the formal requirements. As noted by the Heidelberg Report,13 the courts of the Member States seem to apply this provision without difficulties. Thus, the evolution as to the formal requirements set forth by article 23 of the Brussels I Regulation, now article 25 of the Recast Regulation, is achieved.

The way the convention, then the Regulation, is interpreted has also evolved. The reporter of the original Brussels Convention noted that where clauses are contained in pre-printed contracts or bills, which would not have been accepted by a party to which the clause is opposed, should not be valid.14 ECJ case law has progressively proved to be more liberal in this sense.15 Member States courts too. Thus, a clause enshrined in general conditions has been repeatedly validated by the French Cour de cassation.16

The evolution of the formal requirement may also be noted through the comparison of the 1965 Hague Convention on choice of forum clause17 and the 2005 Hague Convention on the same topic.18 Whereas in 1965 the formal requirement was that the jurisdictional agreement had to be in writing (art. 4), article 3 of the 2005 Convention authorizes that an exclusive choice-of-court agreement be 'concluded or documented in writing or by any other means of communication which renders information accessible so as to be usable for subsequent reference.'19

An evolution, non-identical but with certain similarities, has also taken place in the field of arbitration. This evolution is easy to realize by comparing the original version of the Article 7 of the influential UNCITRAL Model Law on International Commercial Arbitration adopted in 1985 with its 2006 version. In the latter, two options were included: the first one extensively develops the notion of 'written,'20 and the second one (which was the product of a kind of reaction against the complexity of such a development) eliminates any reference to the form of the arbitration agreement21 As a result, freedom of form is taking some place in international arbitration.22

2 Requirements concerning the link between the litigation and the forum

To the contrary, one might think there isn't dual opposition between countries that require a certain link between the litigation and the chosen forum and those which do not. Indeed, the differences with regard to the requirement of a link in the validity of a choice of forum clause are huge. This part of the paper aims at distinguishing these requirements and assessing them. A first group of legal systems are remarkable for their sympathy towards party autonomy, which would be evidenced by the absence of the requirement of a link between the chosen forum and the litigation. A second kind of rule can be found in international and supranational instruments (multilateral conventions and integrated-systems instruments), where a geographical link is not needed between the litigation and the chosen forum, but between the chosen forum and any of the countries participating in those instruments. Thirdly, another kind of rule consists in requesting a link between the litigation and the chosen forum, and sometimes, a specific link.

1. The absence of requirement of any kind of link: the 'universalist approach' to justice (party autonomy friendly)

Among the ever-growing group of legal systems that are party autonomy friendly, those that accept submissions based on party autonomy without requiring any connection between the case and the forum, some nuances must be made. Essentially, the difference lays in the intensity of the binding character given to forum selection agreements.

a) A first group could be characterized as the normal sympathetic group. States belonging to this group do not require any link, but the court has a discretionary power to assess their jurisdiction (forum non conveniens and the like). This is the normal situation in common-law countries, in which the judge power is, as a matter of principle, placed at a higher level than the party's ability to choose a forum. Thus, it has been said, 'the official position under English common law is still that a choice-of-court agreement is never absolutely binding on an English court. The parties cannot by their private agreement oust the jurisdiction of the courts.'23 In practice, in England there would be two answers to two different situations: 'foreign' selection clauses might be respected or not, according to the circumstances of the case, while 'forum' selection clauses would be almost always respected.24

We are not talking here about the scrutiny of the clause. Of course, every judge before whom an action is brought notwithstanding the existence of a foreign selection clause shall analyze the 'regularity' of that clause under the relevant rules. What is particular in the English legal system is that, even if the foreign selection clause is 'regular,' the English judge may exercise its discretion to disregard the choice-of-court agreement.

b) A second group would be the very sympathetic group, which assures (in principle) the efficacy of party autonomy by means of considering that forum selection clauses are exclusive unless parties agree otherwise. For this group, the will of the parties would always prevail over the power of judges, if any. The paradigmatic case is the 2005 Hague Convention,25 only applicable to exclusive agreements, whose Article 5 provides that:

(1) The court or courts of a Contracting State designated in an exclusive choice-of-court agreement shall have jurisdiction to decide a dispute to which the agreement applies, unless the agreement is null and void under the law of that State.

(2) A court that has jurisdiction under paragraph 1 shall not decline to exercise jurisdiction on the ground that the dispute should be decided in a court of another State.

Among the most recent domestic regulations, it is worth mentioning the new jurisdictional law of Japan, adopted in 2011. Within the new system, even if a competent Japanese court may in general (according to new Article 3-9 of the Code of Civil Procedure (CPC))26 dismiss an action under 'special circumstances,' this power cannot be used when a choice of forum clause designates a Japanese court.27 Having said that, from another point of view, the functioning of the Japanese legal system seems not to be totally different than the English one. Indeed, whereas 'forum' selection clauses would be systematically accepted in Japan, the respect of 'foreign' selection clauses does not receive the same treatment. Thus, according to Article 3-7(4) CPC, the conclusion of an exclusive agreement in favour of a foreign court "may not be invoked if those courts are legally or factually unable to exercise jurisdiction."28

All in all, the absence of any requirement of link seems to be based on a logical argument. When the link is too weak it does not add anything. It would be only an instrument of pure rhetoric. Conversely, when the link is rather substantial, it alone should serve as a fundament of a regular ground of jurisdiction, even if parties do not agree upon it. That seems to be the idea underlying Article 2.1 of UNIDROIT Principles on Transnational Civil Procedure:29

[2. Jurisdiction Over Parties]

2.1 Jurisdiction over a party may be exercised:

2.1.1 By consent of the parties to submit the dispute to the tribunal;

2.1.2 When there is a substantial connection between the forum state and the party or the transaction or occurrence in dispute. A substantial connection exists when a significant part of the transaction or occurrence occurred in the forum state, when an individual defendant is a habitual resident of the forum state or a jural entity has received its charter of organization or has its principal place of business therein, or when property to which the dispute relates is located in the forum state.

2. The game of multilateral and integrated systems: when the validity of the choice-of-forum clause depends on a link with the system (and not with the selected forum)

At first sight, it may be thought that this point has no relationship with the rest of this paper because what would be addressed here is not the link required for the validity of the choice-of-court agreement but one of the dimensions of the scope of application of each instrument. Nevertheless, that impression is quickly dissipated after a closer, specific analysis. Indeed, we are talking about two legal instruments providing for link requirements particularly applicable to choice of forum. One is the 2000 version of the Brussels I Regulation, whose Article 23 includes a specific link requirement for forum selection agreements.30 The other is 1994 Buenos Aires Protocol on International Jurisdiction on Contractual Matters, elaborated within the framework of the MERCOSUR and in force in its four original member States, which establishes as one of the possible cases of application a specific reference to forum agreements containing a substantial link requirement.

a) Within the European context, in both old and new version of Brussels I Regulation, as it is well known, no link between the forum and the legal relationship is required. Article 23 of the Regulation is crystal clear on this issue: the chosen jurisdiction of a Member State,31 if the formal requirements stipulated in this provision are met, has absolutely no discretion in deciding whether or not it should take the case. It has to recognize its jurisdiction over the case without depending on any substantial condition. Article 23(1) of the Regulation states:

If the parties […] have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes that have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction.

Two words are worth emphasising: any disputes - as long as it is a legal dispute - and shall have jurisdiction, that is to say, without having the power to assess their own jurisdiction given the circumstances of the case. The Benincasa case (§28)32 insisted on the absence of link needed between the litigation and the elected jurisdiction, which, otherwise, would have introduced a certain degree of uncertainty in the allocation of jurisdiction of Member States courts, which is in contradiction with the goals of the Brussels I Regulation. Hence, certainty is privileged over proximity while flexibility (meaning discretion) is directly avoided.33

Until now all would seem to indicate that the commented provision of the Brussels I Regulation should be placed in the previous group (II.1) rather than in this one. Nonetheless, the conclusion is different if we add the omitted phrase in the sentence of Article 23 quoted above. This phrase, which says '[If the parties,] one of more of whom is domiciled in a Member State,' gives actually another perspective. It reminds us of the EU character of the rule and the necessity of a personal connection between the case and the EU territory in order to allow the discarding of the application of domestic rules of jurisdiction. Certainly, this link requirement is weaker than the general rule of applicability of the Brussels I Regulation (the domicile of the defendant in a Member State) but, at least originally, this provision was more due to a practical reason (at the moment of the conclusion of the agreement, parties' procedural positions are not yet defined)34 than to a special consideration paid to the significance of party autonomy.35

The weight of this 'European' link requirement is better appreciated when one realizes its deletion in the new version of the Brussels Regulation. The phrase has been substituted by 'regardless of their domicile' in the wording of Article 25 of the Brussels I Regulation Recast. That means that domestic rules on jurisdiction based on forum selection clauses could not longer be invoked to assume jurisdiction in cases dealing with a matter covered by the substantial scope of application of the Brussels I Regulation, wherever parties are domiciled, as long as the clause designates a jurisdiction of a Member State.36 However, domestic jurisdictional rules have not been totally discarded. Such rules are still necessary to determine the substantive validity of the agreement, as reflected in a new sentence included in the 2012 Brussels Regulation.37 It is not exaggerated to say that this sentence incorporates in fact a certain discretional power for the chosen court to be applied in determining whether the agreement is valid or not.38

This reference to the application of a national law to the substantive validity of the clause, which includes also conflict-of-law rules of the forum39 seems, at first sight, to entail complications in assessing the validity of the clause. However, this inclusion is nothing more, according to the Heidelberg Report, than an acknowledgment of Member States' court practice. Indeed, Thomas Pfeiffer (the author of this part of the Report) notes that 'Member State practice, as shown by the national reports reveals a wide-spread reference to national laws as to the formation of consent.'40

Furthermore, the deletion of the link requirement does not imply that a forum selection agreement concluded by parties who are not domiciled in Member States have no effect under the original version of the Regulation. On the contrary, according to Article 23(3), in such a case 'the courts of the other Member States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction.'41

b) The situation of the Mercosouthern Buenos Aires Protocol concerning the link requirements as to the validity of choice-of-court agreement is different from that of the Brussels/Lugano System. In this Protocol, there is a substantial link required for the validity of a forum selection agreement, which is mixed with the definition of the scope of application of the instrument (Article 1(b)).

In principle, the elements seem similar to those of the 2000 Brussels I Regulation: the territorial connexion is only required for one party and the court selected must be located in one 'State Party of the Treaty of Asunción.'42 The similarity is only apparent. Besides the reference made to the founding treaty instead to the instrument itself, the general rule of application (of which this one is an exception) is not the domicile of the defendant in a State of the system but the domicile ('or corporate headquarters') of all the parties involved in the contractual relationship (Article 1(a)).

However, the most significant difference between the European rule and its pair of the MERCOSUR is that the latter expressly contains a substantial link requirement consisting in a 'reasonable connection according to the rules of jurisdiction of this Protocol.' This difference places the Mercosouthern rule in the following group.

3. The requirement of a link:from the 'particularistic' approach ot justice to the simple restriction to party autonomy

One of the main arguments for the admission of forum selection agreements is the possibility to choose a neutral forum, i.e. a forum disconnected from the parties, hence from the litigation. If a link is required for the validity of a choice of forum clause, doesn't it impede this argument? However, a natural response to this argument, which has been formulated long ago, is that courts of one country are not supposed to be used to settle a litigation that has absolutely nothing to do with such a country. Judges are employed by the state; this represents a cost for the State that should not be so widely used. In other words, from this perspective, justice is conceived as a public service and not as a commercial good.

The argument has been used to justify the choice made by the Swiss legislator to authorize Swiss jurisdictions to deny jurisdiction, notwithstanding the existence of choice of forum clause designating Swiss jurisdiction, where none of the parties is domiciled or has its habitual residence or a place of business in the canton where the chosen court sits and where Swiss law is not applicable to the dispute.43 In Belgium, searching for the enforcement of the same policy, the Code of Private International Law is more succinct. It uses a negative formulation: notwithstanding the voluntary submission of the parties to a court or the courts of this country, the claim may be refused when the case 'has no significant link' with Belgium.44 The same reasons seem have been taken into consideration by the 2005 Hague Convention drafters to allow the possibility for States to introduce a link requirement in the Article 19.45

This argument might be superseded by the fact that litigation brought in one country tends to bring more resources to the State than the amount the State has to pay for the functioning of its judiciary system. This is true when the litigation driven to a State is either quantitatively or qualitatively meaningful. The gathering in a jurisdiction of many cases on a particular matter, even if singly considered they are not quite relevant from an economical perspective, as well as the attraction of big cases are likely to produce a positive impact consisting in more investments in equipment and services, higher (local) lawyers' incomes (and, consequently, more taxes), the development of expertise, etc. Many examples may be found on this point, though perhaps the most clear is the New York rule preventing against the use of forum non conveniens - under certain conditions - when litigation amount is over US$1 million.46

Obviously, this line of arguments related to justice administration and economics is not the only possibility in order to justify that a link be required for the validity of a choice of forum clause. Thus, the 'reasonable connection' required by the Buenos Aires Protocol (Article 1(b)) is of a different nature. Here the reasons seem to be rooted in an intrinsic distrust in party autonomy and in the allegation that parties usually have an opportunistic behaviour if not fraudulent intentions.47 The problem is that, even if these prejudices were justified, nothing indicates that the requirement of a reasonable link between the case and the forum could solve them. Furthermore, the indication of the Protocol is in itself problematic. On the one hand, the reasonable label of the link is given by the "rules of jurisdiction of this Protocol". That means that a choice-of-court agreement may be considered valid under the Protocol, only if the criteria referred to in the same instrument is met in the selected forum: domicile of each party, place of enforcement, or place of conclusion in the hypothesis of Article 11. Consequently, within the framework of the Mercosouthern Protocol, the choice of forum seems conceived rather to reinforce those connexions than as a specific ground of jurisdiction. On the other hand, the fact that this link requirement has been drafted as a condition of applicability of the instrument and not as a requirement for the validity of the clause48 allows that, paradoxically, even in a case closely related to the MERCOSUR, the agreement might be valid in application of the rules of the forum State (for example, Argentina) though no 'reasonable' connection under the Protocol does exist.

The worries are old but the drafting seems more confusing now than in the past. Indeed, almost a century ago, the Bustamante Code, in its Article 318 had stated:

The judge competent in the first place to take cognizance of suits arising from the exercise of civil and commercial actions of all kinds shall be the one to whom the litigants expressly or impliedly submit themselves, provided that one of them at least is a national of the Contracting State to which the judge belongs or has his domicile therein, and in the absence of local laws to the contrary.

Finally, what is most interesting in all legal systems including whatever link requirement is their significant role in promoting arbitration. Indeed, while parties encounter in those systems objective obstacles to validly submit to courts, arbitration will be in general ready to welcome them. One could even wonder if that is not the real reason behind the keeping of those link requirements.

1
The term efficacy is taken in this paper in its broadest sense, including, in particular, the notion of validity.

2
See, in this sense , ECJ 14 Dec ember 1976, Case 25/76, Estasis Salotti v. RÜWA, § 7; ECJ 10 March 1992, Case C-214/89, Power Duffryn, § 24; ECJ 9 November 2000, Case C-387/98, Coreck Maritime GmgbH v. Handelsveem BV e.a., § 13.

3
Such as, in civil law systems, the'notary'- term that, as is well known, has a total different meaning in some common law systems (in the US for example).

4
That was the case in Spain, even today regretted by some. See Elías Campo Villegas, 'El notario, las controversias y el arbitraje,' El Notario del Siglo XXI, 54 (2014).

5
That is the case, for instance, of the Bustamante Code (American Code of Private International Law, adopted by the VI Pan-American Conference 1928, in force in 15 States though rarely applied in most of them), in which the pertinent rule of Article 318 does not include any reference to the form. Nevertheless, in the chapter on 'contracts in general,' Article 180 stipulates that formal requirements of the States of both the place of conclusion and the place of enforcement shall apply.

6
Article 4 of the Italian Act on Private International Law; Article3-7ofthe Japanese Code of Civil Procedure; Article 44 of the Venezuelan Act on Private International Law; etc.

7
For instance: art. 5(2) of the Swiss Federal Act on Private International Law: 'The agreement may be made in writing, by telegram, telex, fax, or by any other means of communication which evidences the terms of the agreement by a text.'

8
Article 24 of the Brussels I Regulation (article26(1) of the Brussels I Recast Regulation) is a good example of this complementarity. Indeed, article 23 (on the forum selection clause) and article 24 are enshrined in the same section of the Regulation, dedicated to 'prorogation of jurisdiction.' However, in some cases, the submission by appearance - i.e. the agreement on the chosen jurisdiction by the claimant on the premises of the litigation - exists alone. In South America, the 1940 Montevideo Treaties (in force in Argentina, Paraguay and Uruguay and still frequently applied) at the same time that introduced a general prohibition of party autonomy (Article 5 of the Additional Protocol) accepted the tacit submission to jurisdiction provided that it is positive and not fictitious (Article 56 of Montevideo Treaty on International Civil Law). See Hague Conference on Private International Law, The American Instruments on Private International Law - A Paper on their Relation to the Future Hague Convention on Exclusive Choice of Court Agreements (June 2005), http://www. hcch.net/upload/wop/jdgm_pd31e.pdf

9
Which can be also called'Brussels/LuganoS ystem,' containing the rules on jurisdiction and enforcement of foreign judgments. Its starting point is the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters signed in Brussels on 27 September 1968. Several successive versions were adopted as a consequence of the accession of new members to the EU, as well as 'parallel' versions connecting EU countries with EFTA countries.

10
According to Hélène Gaudemet-Tallon, Compétence et exécution des jugements en Europe, 4th ed., LGDJ (2010) §147, and Ulrich Magnus, in Ulrich Magnus & Peter Mankowski (eds.), Brussels I Regulation, 2nd revised ed., Sellier (2012) Art. 23 §114.

11
The so-called Brussels I Regulation is the EU-instrument version of the Brussels/ Lugano System. A new version of this Regulation was adopted in 2012 and will enter into force in 2015 (here mentioned as Brussels I Regulation Recast).

12
On the significance of usages, see in general See , in general, Roy Goode ,'Usage and its Reception in Transnational Commercial Law,' International and Comparative Law Quarterly (1997) 1-36.

13
Report on the application of Regulation Brussels I in the Member States by Burkhard Hess, Thomas Pfeiffer & Peter Schlosser, September 2007.

14
To tell the whole story, the reporter also reproduces the opinion of the Drafting Committee according to which "'excessive formality which is incompatible with commercial practice' should be avoided." Jenard Report, 37.

15
ECJ 16 March 1999, Case C -159/97, Transporti Castelletti v. Hugo Trumpy.

16
See, for instance, Cass. Civ. 1re, 27 February 2013 (pourvoi N.11-23.520); Cass. Com., 20 March 2012 (pourvoi N. 11-11.570).

17
The Hague Convention of 25 November 1965 on the Choice of Court. This Convention never entered into force.

18
Only ratified by Mexico at the time of writing this paper , the Convention on 30 June 2005 on Choice of Court Agreements has not yet come into force.

19
The wording of the requirement has been criticized on the basis that the word "documented" supposes that a non-signed document would be sufficient to establish the consent of parties to the clause. Laurence Usunier, 'La Convention de La Haye du 30 juin 2005 sur les accords d'élection de for. Beaucoup de bruit pour rien?,' Revue critique de droit international privé (2010) 37, §7.

20
So extensively that some described forms look rather like oral ones. On this opposition, see Toby Landau, 'The Requirement of a Written Form for an Arbitration Agreement: When 'Written' Means 'Oral',' in Albert Jan van der Berg (ed.), International Commercial Arbitration: Important Contemporary Questions, Kluwer (2003) 19.

21
See Diego P. Fernández Arroyo& Pilar Perales Viscasillas,' Las contribuciones de la CNUDMI/UNCITRAL en materia de arbitraje: razones y políticas de una década altamente productive,' Revista de Derecho Comparado 20 (2012) 37.

22
Thus, in France, no formal requirement is necessary for the arbitration agreement in international arbitration (Article 1507 of the Code of Civil Procedure), while in domestic arbitration it shall be in writing "in order to be valid" (Article 1443 of the same Code).

23
Trevor Hartley, Choice of Courts, OUP (2013) §1.14 (commenting the case The Fehmarn [1958] 1 WLR 159, pp.161-2 (CA)).

24
'It is almost unknown for an English court to refuse to hear a case when England is the designated forum…. It is only when a foreign forum is selected that there is any realistic possibility that the English court will exercise its discretion to disregard the choice-of-court agreement.' Hartley, op. cit., §1.16. But see Adrian Briggs, Agreements on Jurisdiction and Choice of Law, OUP (2008) §6.05 ('there is no room for chauvinism').

25
Even though the Brussels/Lugano System (Articles 23, 2000 Brussels I Regulation, and 25 of the Recast Regulation) also provides for the exclusive character of forum selection agreements "unless the parties have agreed otherwise", we will place it in the next (intermediary) category because it is not absolutely free of link requirements.

26
This article contains a sort of forum non conveniens à la japonaise that had been already recognised by the Supreme Court in the famous Family Case (11 November 1977, Japanese Annual of International Law 41 (1998) 117). On the differences, see Masato Dogauchi, 'New Japanese Rules on International Jurisdiction: General Observation,' Japanese Yearbook of International Law 54 (2011) 260, 275-276; Yuko Nishitani, 'International Jurisdiction of Japanese Courts in a Comparative Perspective,' Netherlands International Law Review (2013) 251, 271.

27
This idea is not far from that inspiring the first paragraph of the Article15 of the recent Panamanian Code of Private International Law.

28
See Nishitani, loc. cit., 266.

29
Rolf A. Stürner,' The Principles of Transnational Civil Procedure. An Introduction to Their Basic Conceptions,' RabelsZ 69 (2005) 201, 225.

30
Lugano Convention, concluded by the EU, on the one side, and Switzerland, Norway and Iceland, on the other side, includes an identical Article 23, only substituting the words 'Member State' by 'State bound by this Convention.'

31
Actually, this could be taken as a link requirement: the rule is only applicable to agreements selecting the courts of Member States.

32
ECJ 3 July 1997, Case C -269/95, Benincasa v. Dentalkit, §28: 'The aim of securing legal certainty by making it possible reliably to foresee which court will have jurisdiction has been interpreted in connection with Article 17 of the Convention, which accords with the intentions of the parties to the contract and provides for exclusive jurisdiction by dispensing with any objective connection between the relationship in dispute and the court designated, by fixing strict conditions as to form.'

33
ECJ 1 March 2005, Case C -281/02, Owusu v. Jackson (avoiding forum non conveniens whenever Brussels Convention - now Regulation - applies).

34
According to one of most outstanding specialists, it would be aberrant that the application of Article 23 depends on which party assumes the role the defendant. See Hélène Gaudemet-Tallon, op. cit., §126.

35
As it is the case regarding exclusive grounds of jurisdiction (Article 22 of the Brussels I Regulation).

36
As such, the Brussels I Recast Regulation has 'internationalised' one of its rules of jurisdiction, which was the initial ambition of the Commission in its proposal. 82 | ICC Institute of World Business Law Jurisdictional Choices in Times of Trouble However, the internationalisation of all grounds of jurisdiction has been rejected in the final version. Have been spared article 25 as well as article 18 (1) and 21 (2). See Catherine Kessedjian, 'Commentaire de la refonte du règlement n°44/2001,' RTD Eur (2011) 117.

37
EU drafters have added a new sentence inArticle25, after the sentence already quoted, which states: 'unless the agreement is null and void as to its substantive validity under the law of that Member State' [the State whose courts have been chosen].

38
Since this subject is addressed by others speakers in this conference (in this book), I will not enter more deeply into this topic.

39
According to the recital 20 of Brussels I Recast Regulation. The same assumption applies regarding Article 5(1) of the 2005 Hague Convention. An opposite opinion has been defended by Jean-Paul Béraudo, 'Regards sur le nouveau règlement Bruxelles I sur la compétence judiciaire, la reconnaissance et l'exécution des décisions en matière civile et commerciale,' Journal de Droit International (2013) 741, n°22.

40
Ibid. §376. The application of Article 25 of the Regulation Recast should not then be more complicated than it was before. And it was probably not too late to mention the substantive validity of the clause.

41
It should be added that when the 2005 Hague Convention will come into force for the EU, Article 25 of the Brussels I Regulation will apply only to agreements concluded by parties who are domiciled in Member States and/or in non Member States which are no parties of the Hague Convention, because of Article 26(6) of the Hague Convention. On this rule, see Hartley/Dogauchi Report, §§291 ff; see also Catherine Kessedjian, 'La Convention de La Haye du 30 juin 2005 sur l'élection de for,' Journal de Droit International (2006) 813, 823-824.

42
The 1991 Treaty of Asuncion is the founding treaty of the MERCOSUR integration system. All Contracting Parties of the Buenos Aires Protocol are also Members of that Treaty. Nevertheless, MERCOSUR has incorporated a new member (Venezuela), which has not yet ratified the Protocol.

43
This results from a contrario interpretation of art. 5(3) of the Swiss Act on Private International Law and is confirmed by the Message (Message of 10 November 1982 on a Federal Statute on Private International Law (FF 1983 I 255), which explains that art. 5(3) is a compromise and searches for the minimum necessary conditions for a Swiss Court to accept jurisdiction.

44
Article6(2) of the Belgian Code of Private International Law.

45
See Hartley/Dogauchi Report, §230. Article 19 states: 'A State may declare that its courts may refuse to determine disputes to which an exclusive choice-ofcourt agreement applies if, except for the location of the chosen court, there is no connection between that State and the parties or the dispute.'

46
See Section 327 of the New York Code of Civil Procedure, which provides that: '… the court shall not stay or dismiss any action on the ground of inconvenient forum, where the action arises out of or relates to a contract, agreement or undertaking to which section 5-1402 of the general obligations law applies, and the parties to the contract have agreed that the law of this state shall govern their rights or duties in whole or in part.' The mentioned Section 5-1402 of the GOL states: '… any person may maintain an action or proceeding against a foreign corporation, non-resident, or foreign state where the action or proceeding arises out of or relates to any contract, agreement or undertaking for which a choice of New York law has been made in whole or in part pursuant to section 5-1401 and which (a) is a contract, agreement or undertaking, contingent or otherwise, in consideration of, or relating to any obligation arising out of a transaction covering in the aggregate, not less than one million dollars, and (b) which contains a provision or provisions whereby such foreign corporation or non-resident agrees to submit to the jurisdiction of the courts of this state.'

47
It appears as a compromise between the two extreme positions regarding party autonomy among Member Sates: Argentinean openness and Uruguayan traditional reluctance. More justified but in the same line, it is worth to mention that the Article 4 of the Protocol requires that the 'agreement has not been obtained abusively.' The compromise is completed with a rule ordering the application of the law most favourable to the validity of the agreement (Article 5(3)). For further discussion on the context of these issues, see Diego P. Fernández Arroyo, 'International Contract Rules in MERCOSUR: End of an Era or Trojan Horse?,' Essays in Honor of Friedrich K. Juenger, Transnational Publishers (2001) 157; id., 'Forum Selection Clauses within the Mercosouthern Law: the Hard Implementation of an Accepted Rule,' Uniform Law Review (2008) 873.

48
See supra epigraph II.2.b).