Forum Disruption: The Excessive Application of Public Policy and Mandatory Rules to Transnational Choice of Forum Clauses

Abstract

Are parties to a transnational contract dispute able, and should they be permitted, to employ domestic laws to escape their agreed forum for the resolution of disputes? Or should party autonomy and the need for certainty in international contractual relations outweigh the policies embodied in such laws? Is there a clear test or are parties left to guess whether their agreement might be overridden?

This thesis will evaluate evolving authorities to expose the uncertain and inconsistent creation of mandatory rules coupled with the excessive application of public policy and mandatory rules to override transnational choice of forum clauses. Against forum disruption, it will be argued that choice of forum clauses ought to be given greater priority over statutory mandatory rules than currently afforded in Australia. This will enhance predictability and promote congruence with international forums.