INTERPRETING MULTIPLE DISPUTE-RESOLUTION CLAUSES IN CROSS-BORDER CONTRACTS

Abstract

Cross-border contracts often contain a clause which purports to reflect the parties’ intention regarding how disputes arising from their agreement should be resolved. Some such contracts might feature a “jurisdiction clause”, thus signifying the parties’ wish to subject their disputes to litigation before the courts in a specific state. Others may include an “arbitration clause”, meaning that claims arising from the contract should be subjected to an arbitral hearing. More unusual are cases in which the parties have included a jurisdiction and an arbitration clause in the same cross-border contract. This article seeks to assess English law’s approach to determining the parties’ preferred mode of dispute resolution in these more difficult cases. As it seeks to demonstrate, the current practice in this area is not always easy to defend. The article advances an alternative basis for determining which of the two competing clauses should prevail.