Jurisdiction and Choice of Law in International Commercial Contracts: A Doctrinal Analysis

This paper offers a thorough discussion of the complexities involved in commercial litigation involving parties of different jurisdictions especially in the Indian jurisdiction. It explores the premises of the jurisdiction and choice of law, and distinguishes substantive and procedural laws necessary in resolving difficult international commercial cases. It also analyses how Indian private international law has developed and how it has long been in relation to English common-law traditions with respect to choice of law in an international business contract. In particular, it examines the ways in which Indian courts understand and enforce party autonomy in identifying the statute of law best suited to a contract and tend to make comparisons to well-established common law doctrine. Such recourse to judge based principles underscores the lack of a written system of private international law in India, akin to other common law systems such as South Africa. This methodology requires a thorough review of judicial precedents that could identify the series of principles that render the law to apply in specific situations; especially where the parties involved have not clearly selected one. In addition, the effects of the international conventions, including the Hague Convention of Choice of Court Agreements, on the application of the forum-selection clauses to the Indian legal system in terms of the current international legal instruments the country is taking will also be evaluated in this paper. The operation rules and principles that Indian courts use in cases where applicable laws are elusive will also be scrutinized particularly in case of concurrent contract and product liability claims. This will entail the substantive examination of tacit choice of law especially in cases where there was no formal agreement and the interpretation of the tacit agreements in international commercial contracts whose interpretation varies within the Indian legal system