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Article 23: Formal Validity, Material Validity or Both?

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This article aims to assess, firstly, the law as it stands in relation to Article 23 of the Judgments Regulation (governing exclusive jurisdiction clauses) putting forward an interpretation that maintains the distinction between formal and material validity and arguing that only the former falls within Article 23 while the latter is to be governed by national law. Second, the article examines the recent Commission Proposals on this subject concluding that, although they point in the right direction, they do not reach fully satisfactory result. Third, the article considers alternative approaches to the Article 23 conundrum, in particular the use of good faith as a method of assessing material validity. This will be rejected. Finally, the author puts forward his own solution – one dependent upon an interaction between the Judgments Regulation and Rome I which divides the issues of formal and material validity between the two.

Document Type: Research Article

DOI: http://dx.doi.org/10.5235/174410411796868670

Publication date: August 1, 2011

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