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8 - Challenging Choice of Jurisdiction

Published online by Cambridge University Press:  19 December 2020

Jo Braithwaite
Affiliation:
London School of Economics and Political Science
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Summary

Financial markets litigants may, for different reasons, seek to bypass the legal landscape discussed thus far. Where parties have agreed to contracts expressly selecting English law and, in some version of a jurisdiction clause, the English courts, this may give rise to a preliminary dispute about the effects of the parties’ contractual choices. If so, the result is a classic example of what Robert Wai refers to as ‘“touchdown” points’ between a private regime and state law. The concern of the current and the following chapter is how the English courts navigate challenges to the choice of jurisdiction and governing law provided for in derivatives contracts, and the related legal issues that arise as a result of the global reach of the modern OTC markets. The principal focus here is claims arising out of or connected to the parties’ contract; where allegations relate to a broader, fraudulent scheme, the tort of conspiracy or deceit different principles will apply to determine governing law and jurisdiction.

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Chapter
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The Financial Courts
Adjudicating Disputes in Derivatives Markets
, pp. 279 - 311
Publisher: Cambridge University Press
Print publication year: 2021

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