Alleviating Jurisdictional Uncertainty: An Arbitration Clause or a Jurisdiction Clause

摘要

Disputes arising from commercial contracts involving foreign elements can be subject to litigation in many forums. Jurisdictional uncertainty has a very negative impact on engagement in international commerce. This uncertainty can be mitigated by the incorporation of either an arbitration clause or a jurisdiction clause. This article undertakes a comparative analysis of arbitration and jurisdiction clauses to show that reliance on an arbitration clause will provide parties to an international contract of commerce with a higher level of certainty. As this article clarifies, courts' discretionary power to refuse the enforcement of arbitration clauses is less than their discretionary power to refuse enforcement of jurisdiction clauses. Courts grant a favourable treatment to arbitration clauses when enforced, whereas jurisdiction clauses are not treated as preferentially as arbitration clauses. This article concludes that if jurisdiction clauses are going to be of an equal function to arbitration clauses in terms of reducing jurisdictional uncertainty, a unified international legal framework for the enforcement of jurisdiction clauses must be in operation.