선하증권상의 법정선택조항의 법리
Legal Theory on the Forum Selection Clauses in Bill of Ladings
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Abstract
There are legitimate reasons for enforcing Forum Selection Clauses. That said, courts and scholars were too hasty to jump from non-enforcement to specific enforcement without considering whether a damages remedy is a more preferable means of enforcement. There is no reason to deny specific enforcement of an Forum Selection Clause where the parties freely negotiate such a clause. However, with respect to consumer adhesion contracts, a court should allow a consumer to pay damages in lieu of dismissal. Such a remedy would give sophisticated parties their only interest in such clauses, namely saving money, while at the same time allowing consumers to avoid the unnecessary harshness of specific enforcement. Granted, in many cases, a court will specifically enforce an Forum Selection Clause because the plaintiff will be unwilling pay the costs of litigating in a convenient forum. However, where a consumer is willing and able to pay the non-breaching party's expectation interest in the Forum Selection Clause, a court has no reason to specifically enforce the Forum Selection Clause and various reasons to award damages in lieu of dismissal. Because the sophisticated party is still afforded an opportunity to show that it will suffer irreparable harm if the court does not specifically enforce the Forum Selection Clause, the sophisticated party cannot complain if it receives damages. Under the current state of the law, a consumer carries a near-insurmountable burden of showing serious inconvenience or some other equitable reason why an Forum Selection Clause should not be enforced. Allowing a consumer to breach an Forum Selection Clause and pay damages is a more preferable remedy, and courts and scholars should consider this alternative approach to the enforcement of Forum Selection Clauses with more scrutiny.
참고문헌 (21)
- "해상운송에 관한 국제통일조약의 통일성 및 효율성 비교" (1994)
- "선하증권상의 외국중재조항과 관련한 판례 및 입법동향", (8) (1998), 한국중재학회
- Phillip A, "Forum Selection and Choice of Law Clauses in International Contracts: A United States Viewpoint With Particular Reference to Maritime Contracts and Bills of Lading", 17(1) (1995)
- Clark, "Foreign Arbitration Clauses and Foreign Forum Selection Clauses in Bills of Lading Governed by COGSA", (483) (1996)
- Jonathan L, "Forum Non Conveniens: A Vehicle for Federal Court Enforcement of Forum Selection Clauses that Name Non-Federal Forums as Proper", 97(1853) (2003)
- Davies, "Forum Selection Clauses in Maritime Cases", 27(367) (2003)
- Jayson, "British Columbia Sinks Forum Selection Clauses: Friesen v. Norwegian Cruise Lines", 28(625) (2004)
- Samuel Robert, "reating Uniform Worldwide Liability Standards for Sea Carriage of Goods Under the Hague, COGSA, Visby and Hamburg Conventions", 23(471) (1996)
- B. Alexander Moghaddam, "COGSA and Choice of Law Clauses in Bills of Lading", 17(1) (1992)
- O'Hara, "The Jurisprudence and Politics of Forum-Selection Clauses", 3(301) (2002)
- Panek, "Forum Selection Clauses in Diversity Actions", 36(941) (2003)
- "Deviation and the Package Limitation in the Hague Rules and the Carriage of Goods by Sea Act:An Alternative Approach to the Interpretation of International Uniform Acts", 68(977) (1990)
- "Transfer of Venue Under 28 U.S.C. § 1404(A) All Things to All People, or, Cracking Under the Weight of the Forum Selection Clause" (2002)
- "Forum Selection Clause Survey 2000- 2003", 27 tul. mar. l. j. 723 (2003)
- "Symposium Edition: Forum Non Conveniens: Development and Issues Over the Past Seven Years: Forum Non Conveniens and the Foreign Forum: A Defense Perspective", 35(1)
- "Forum Selection Clauses:Damages in Lieu of Dismissal?", 82(1063) (2002)
- "Foreign Forum Selection Clauses Under COGSA:The Supreme Court Charts New Waters in the Sky Reefer Case", 74(867) (1996)
- "Forum Selection Clauses in Seamen's Contracts:Are we Protecting Commercial Progress by Denying Seamen their Rightful Day in Court?", 26(203) (2003)
- "International Uniform Laws in National Courts:The Influence of Domestic Law in Conflicts of Interpretation", 27(729) (1987)
- "Proposed Amendments to the Carriage of Goods by Sea Act", 18(609) (1996)
- "A Matter of Good Form: The (Downsized) Hague Judgments Convention and Conditions of Formal Validity for the Enforcement of Forum Selection Agreements", 53(1179) (2003)