CYIL vol. 12 (2021)

Kateřina zabloudilovÁ CYIL 12 (2021) of the courts of all but those of a single chosen jurisdiction is regarded as non-exclusive .” 46 The Hague Convention provides that jurisdiction agreements are deemed to be exclusive unless the parties have expressly provided otherwise. 47 Non-exclusive jurisdiction agreements are not covered by this legal instrument and invoke its inapplicability. 48 Furthermore, the Hague Convention stipulates that jurisdiction agreements shall be treated independently of the other terms of the contract and that their validity cannot be contested solely on the ground that the contract is not valid. 49 Finally, the Hague Convention applies to matters which fall within the material scope of its application. 50 Partial Conclusion The NY Convention, Brussels Ibis Regulation, as well as the Hague Convention, regulate agreements whereby parties submit their dispute either to arbitration or to one or more courts. All three instruments apply to existing and future disputes covered by such agreements which must relate to a particular legal relationship, contractual or tortious. Moreover, under the NY Convention the principle of separability applies. Similarly, the Brussels Ibis Regulation and the Hague Convention provide that the validity of a jurisdiction agreement must be adjudicated independently of the main contract. To sum up, the concept of arbitration and jurisdiction agreements seems rather similar under all three legal instruments. The author considers this fact to be highly beneficial for the contracting parties. The most considerable difference among the three legal instruments relates to the universal application of the NY Convention. The NY Convention applies to arbitration agreements providing for arbitration in non-contracting states while the Brussels Ibis Regulation and the Hague Convention only apply to jurisdiction agreements referring to one or more courts of the contracting or member states. From this point of view, the NY Convention appears more convenient than the two regulations. Regarding the material scope of application of the three legal instruments, the NY Convention only applies in matters which are arbitrable under national laws. The Hague Convention and the Brussels Ibis Regulation, on the contrary, require jurisdiction agreements to concern matters falling within the material scope of their application. Thus, the difference in the material scope of application of all three legal instruments is determined by the concept of arbitrability in national laws. If the concept of arbitrability is broader than the scope of matters which fall within the material scope of application of the Brussels Ibis Regulation and the Hague Convention, then the conclusion of arbitration agreements seems more 48 Art. 3(a) of the Hague Convention; see also Hartley, T., Dogauchi, M. Explanatory Report on the 2005 HCCH Choice of Court Agreements Convention [online]. op.europa.eu . 22. 12. 2017. [cit. 30. 4. 2021], p. 49, available at: https://www.hcch.net/en/publications-and-studies/details4/?pid=3959; see also Hartley, C. T. (op. cit. sub 31), p. 143; see also Newing, G. Webster, L. (op. cit. sub 10), pp . 109, 110. 49 Art. 3(d) of the Hague Convention; see also Brand A. R., Herrup M. P. (op. cit. sub 43), pp. 16, 46, 47; see also Dobiáš, P., Malacka, M. (op. cit. sub 1), p. 115. 50 These are civil and commercial matters unless they are excluded by Art. 2 of the Hague Convention; see also Brand A. R., Herrup M. P. (op. cit. sub 43), p. 17. 46 Keyes, M. Brook, A. M. (op. cit. sub 5), p. 351. 47 Brand A. R., Herrup M. P. (op. cit. sub 43), p. 42.

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