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The Contractual Basis of the Enforcement of Exclusive and Non-Exclusive Choice of Court Agreements

Yeo Tiong Min

(2005) 17 SAcLJ 306

This article argues that, although choice of court agreements can be viewed from a procedural or contractual perspective, the predominant approach in Singapore and English law in respect of the exclusive jurisdiction agreement has been to give primacy to the rationale of the enforcement of a contractual bargain, tempered by a judicial discretion in its enforcement within the procedural jurisdictional context. It is also argued that the only difference between exclusive and non-exclusive jurisdiction agreements lies in the content and scope of the agreement between the parties, so the same contractual approach (as tempered by procedural considerations) should be applied in so far as the court is enforcing a contractual agreement. The main difficulty lies in determining the promissory content within a non-exclusive jurisdiction agreement. The implications of this analysis go beyond questions relating to the exercise of the jurisdiction of the court. They also reach the contexts of anti-suit injunctions, damages for breach of contracts, and defences to foreign judgments.