Officiële Toelichting

P-2A Subject to restrictions on the court's jurisdiction under the law of the forum and subject to restrictions of international conventions, ordinarily a court may exercise jurisdiction upon the parties' consent. A court should not exercise jurisdiction on the basis of implied consent without giving the parties a fair opportunity to challenge jurisdiction. In the absence of the parties' consent, and subject to the parties' agreement that some other tribunal or forum has exclusive jurisdiction, ordinarily a court may exercise jurisdiction only if the dispute is connected to the forum, as provided in Principle 2.1.2.

P-2B The standard of ‘substantial connection’ has been generally accepted for international legal disputes. Administration of this standard necessarily involves elements of practical judgment and self-restraint. That standard excludes mere physical presence, which within the United States is colloquially called ‘tag jurisdiction.’ Mere physical presence as a basis of jurisdiction within the American federation has historical justification that is inapposite in modern international disputes. The concept of ‘substantial connection’ may be specified and elaborated in international conventions and in national laws. The scope of this expression might not be the same in all systems. However, the concept does not support general jurisdiction on the basis of ‘doing business’ not related to the transaction or occurrence in dispute.

P-2C Principle 2.2 covers the concept of ‘forum necessitatis’ — the forum of necessity whereby a court may properly exercise jurisdiction when no other forum is reasonably available.

P-2D Principle 2.3 recognizes that a state may exercise jurisdiction by sequestration or attachment of locally situated property, for example to secure a potential judgment, even though the property is not the object or subject of the dispute. The procedure with respect to property locally situated is called ‘quasi in rem jurisdiction’ in some legal systems. Principle 2.3 contemplates that, in such a case, the merits of the underlying dispute might be adjudicated in some other forum. The location of intangible property should be ascribed according to forum law.

P-2E Party agreement to exclusive jurisdiction, including an arbitration agreement, ordinarily should be honored.

P-2F The concept recognized in Principle 2.5 is comparable to the common-law rule of forum non conveniens. In some civil-law systems, the concept is that of preventing abuse of the forum. This principle can be given effect by suspending the forum proceeding in deference to another tribunal. The existence of a more convenient forum is necessary for application of this Principle. This Principle should be interpreted in connection with the Principle of Procedural Equality of the Parties, which prohibits any kind of discrimination on the basis of nationality or residence. See Principle 3.2.

P-2G For the timing and scope of devices to stay other proceedings, such as lis pendens, see Principles 10.2 and 28.1.