MASTERS IN AVIATION LAW AND AIR TRANSPORT MANAGEMENT (MALATM)

Research Project Paper

Relevance of Exclusive Jurisdiction Clause in Passenger

Contracts: An analysis

Prepared By: Frank Franky

MALATM Semester III

Subject: Aviation Contracts and Tenders

Roll No: / Admission No: MALATMH

NALSAR UNIVERSITY OF LAW, HYDERABAD

Centre for Air and Space Law (CASL)
 TABLE OF CONTENTS

1. Introduction 3
1.1 Statement of the Problem 3-4
1.2 Research Question 4
1.3 Hypothesis 4
1.4 Research Methodology 4

2. Statutory Provisions 5

3. Central Government Acts: 7

4. Case Studies 10

5. Conclusion 16-17

7. Bibliography 18
Introduction: Chapter 1

What is Exclusive Jurisdiction Clause in a Contract? A clause may purport to grant

jurisdictional rights to the courts of more than one jurisdiction.

Jurisdiction is commonly granted on an exclusive basis (meaning that no other courts except
those specified should be able to adjudicate disputes) or a non-exclusive basis (meaning that
other courts may have the right to adjudicate disputes, in addition to the named courts). An
example of a straightforward exclusive jurisdiction clause is set out below.

“The courts of .......... will have exclusive jurisdiction to adjudicate any dispute arising under
or in connection with this Agreement”.

An example non-exclusive clause is:

“The courts of .......... will have non-exclusive jurisdiction to adjudicate any dispute arising
under or in connection with this Agreement”.

As with governing law clauses, there may be a complex interaction between jurisdiction clauses
and private international law (conflict of laws) and - this should go without saying - the parties
to a contract will not always get what they wish for. Exclusive Jurisdiction clauses are terms in
a contract that provide for wavering the right of the parties to go to any of the civil courts
having jurisdiction to resolve a dispute arising out of that contract by giving exclusive
jurisdiction to one or more of the competent courts. Several issues arise while drafting such
contracts including but not limited to issues such as:

Validity under Indian Contract Act, 1872 (Contract Act) with specific reference to Section 28.

The maxim “expressio unius est exclusio alterius”.

The law with regards to foreign courts.

The statutory provisions various judgements to decipher the law related to exclusive
jurisdiction clauses in India.

Statement of Problem
The maxim “expressio unius est exclusio alterius” which means expression of one is the
exclusion of another. This particular maxim has made strong ramifications when it comes to
drafting of “exclusive jurisdiction clauses”. The exclusive Jurisdiction clause in air passenger
contracts and its relevance when it comes especially to an International passenger, the issue of

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assumption of jurisdiction is further aggravated due to territorial difference. If, in the first place,
a court agrees in the contract and the court assuming jurisdiction over the dispute are not located
in the same country and, in the second place, the cause of action of the suit, either wholly or in
part, has arisen within the territorial limit of the latter court. If, at all, the other party of the
contract, being defendant enters appearance before the court assuming jurisdiction over the
dispute, in majority of the cases, he by filing an interlocutory application raises a question as
to the legality of assumption of jurisdiction by the court. The law becomes very clear that there
is no requirement for using terms such as “only”, alone” or any such term to give exclusive
jurisdiction to a Court, the same can be done by the mere expression of one by excluding
another.

Research Question
Having an exclusive jurisdiction clause will in itself secure a party from proceedings in other
courts. If the exclusive jurisdiction clause in passenger contracts are “mandatory” in nature,
then what is the criteria for courts to determine which was more appropriate forum, for the
purpose of ordering stay of a suit. Will the court look for that forum with which the action had
the most real and substantial connection in terms of convenience or expense, availability of
witnesses, the law governing the relevant transaction and the places where the parties resided
or carried on business?

Hypothesis
The governing law cannot fall to be decided, retrospectively, by reference to an event which
was an uncertain event in the future at the time when obligations under the contract had already
been undertaken, had fallen to be performed, and had been performed. A contract can, however,
validly provide for two proper laws, the second to be applied if the event on which the
application of the first depends is negative. There is a clear distinction in theory between
reference to a foreign law as a choice of law to govern the contract. On the one hand, and
incorporation of some provisions of a foreign law as a term or terms of the contract, on the
other hand, although sometimes it is difficult to draw the distinction in practice.

Research Methodology
It has been necessary to undertake a doctrinal study in order to deliver the various outputs
demanded by the subject. These include case studies, desk top data research and analysis,
relevant literature reviews, studies conducted in the past by experts, judgment released by
honourable courts, and documents released by various law firms etc.
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 Chapter 2

Statutory Provisions

Section 9 of Civil Procedure Code, 1908 (CPC) states that the Courts shall (subject to the
provisions of CPC) have jurisdiction to try all suits of a civil nature except suits which are
either expressly or impliedly barred.

Section 16 of CPC states that suits are to be instituted where subject-matter situate.-Subject to
the pecuniary or other limitations prescribed by any law, suits-(a) for the recovery of
immovable property with or without rent or profits,(b) for the partition of immovable
property,(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon
immovable property,(d) for the determination of any other right to or interest in immovable
property,(e) for compensation for wrong to immovable property,(f) for the recovery of movable
property actually under distrait or attachment, shall be instituted in the Court within the local
limits of whose jurisdiction the property is situate :Provided that a suit to obtain relief
respecting, or compensation for wrong to, immovable property held by or on behalf of the
defendant, may where the relief sought can be entirely obtained through his personal obedience
be instituted either in the Court within the local limits of whose jurisdiction the property is
situated, or in the Court within the local limits of whose jurisdiction the defendant actually and
voluntarily resides, or carries on business, or personally works for gain. Explanation. – In this
section “property” means property situate in [India].

Section 17 of CPC explains the procedure for suits for immovable property situate within
jurisdiction of different Courts- Where a suit is to obtain relief respecting, or compensation for
wrong to, immovable property situate within the jurisdiction of different Court, the suit may
be instituted in any Court within the local limits of whose jurisdiction any portion of the
property is situated :Provided that, in respect of the value of the subject matter of the suit, the
entire claim is cognizable by such Court.

Section 18 of CPC explains the procedure when the local limits of jurisdiction of Courts are
uncertain-(1) Where it is alleged to be uncertain within the local limits of the jurisdiction of
which of two or more Courts any immovable property is situate, any one of those Courts may,
if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and
thereupon proceed to entertain and dispose of any suit relating to that property, and its decree
in the suit shall have the same effect as if the property were situate within the local limits of its
jurisdiction :Provided that the suit is one with respect to which the Court is competent as

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regards the nature and value of the suit to exercise jurisdiction.(2) Where a statement has not
been recorded under sub-section (1), and objection is taken before an Appellate or Provisional
Court that a decree or order in a suit relating to such property was made by a Court not having
jurisdiction where the property is situate, the Appellate or Provisional Court shall not allow the
objection unless in its opinion there was, at the time of the institution of the suit, no reasonable
ground for uncertainty as to the Court having jurisdiction with respect thereto and there has
been a consequent failure of justice.

Section 19 of CPC states that: Where a suit is for compensation for wrong done to the person
or to movable property, if the wrong was done within the local limits of the jurisdiction of one
Court and the defendant resides, or carries on business, or personally works for gain, within
the local limits of the jurisdiction of another Court, the suit may be instituted at the option of
the plaintiff in either of the said Courts.

Further section 20 of CPC states that: Subject to the limitations aforesaid, every suit shall be
instituted in Court within the local limits of whose jurisdiction-(a) the defendant, or each of the
defendants where there are more than one, at the time of the commencement of the suit, actually
and voluntarily resides, or carries on business, or personally works for gain; or(b) any of the
defendants, where there are more than one, at the time of the commencement of the suit actually
and voluntarily resides, or carries on business, or personally works for gain, provided that in
such case either the leave of the Court is given, or the defendants who do not reside, or carry
on business, or personally work for gain, as aforesaid, acquiesce in such institution; or(c) the
cause of action, wholly or in part, arises.

Section 28 of Indian Contract Act, 1872 states agreements which are in restraint of legal
proceedings are void.

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 Chapter 3
Central Government Acts:
The Indian Evidence Act, 1872
Section 19. Admissions by persons whose position must be proved as against party to suit. —

Statements made by persons whose position or liability, it is necessary to prove as against any
party to the suit, are admissions, if such statements would be relevant as against such persons
in relation to such position or liability in a suit brought by or against them, and if they are made
whilst the person making them occupies such position or is subject to such liability. Illustration
A undertakes to collect rents for B. B sues A for not collecting rent due from C to B. A denies
that rent was due from C to B. A statement by C that he owed B rent is an admission, and is a
relevant fact as against A, if A denies that C did owe rent to B.

Carriage by Air Act, 1972 Relevant Sections:

Section 4 Application of amended Convention to India. —

(1) The rules contained in the Second Schedule, being the provisions of the amended
Convention relating to the rights and liabilities of carriers, passengers, consignors, consignees
and other persons, shall, subject to the provisions of this Act, have the force of law in India in
relation to any carriage by air to which those rules apply, irrespective of the nationality of the
aircraft performing the carriage.

5 [(2) For the purpose of this Act, the High Contracting Parties to the amended Convention and
the date of enforcement of the said amended Convention shall be such as are included in Part
II of the Annexure.]

5 [(2A) The Central Government may, having regard to the objects of this Act, and if it
considers necessary or expedient so to do, by notification in the Official Gazette, add to, or, as
the case may be, omit from, Part II of the Annexure, any High Contracting Party and on such
addition, or, as the case may be, omission, such High Contracting Party shall be or shall cease
to be, a High Contracting Party.]

(3) Any reference in the Second Schedule to the territory of any High Contracting party to the
amended convention shall be construed as a reference to all the territories in respect of which
he is a party.

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(4) Any reference in the Second Schedule to agents of the carrier shall be construed as including
a reference to servants of the carrier.

Section 5 Liability in case of death. —

(1) Notwithstanding anything contained in the Fatal Accidents Act, 1855 or any other
enactment or rule of law in force in any part of India, the rules contained in 7 [the First
Schedule, the Second Schedule and the Third Schedule] shall, in all cases to which those rules
apply, determine the liability of a carrier in respect of the death of a passenger.

(2) The liability shall be enforceable for the benefit of such of the members of the passenger's
family as sustained damage by reason of his death. Explanation. —In this sub-section, the
expression “member of a family” means wife or husband, parent, step-parent, gand parent,
brother, sister, half-brother, half-sister, child, step-child and grand-child: Provided that in
deducing any such relationship as aforesaid any illegitimate person and any adopted person
shall be treated as being or as having been, the legitimate child of his mother and reputed father
or, as the case may be, of his adopters.

(3) An action to enforce the liability may be brought by the personal representative of the
passenger or by any person for whose benefit the liability is under sub-section (2) enforceable,
but only one action shall be brought in India in respect of the death of any one passenger, and
every such action by whomsoever brought shall be for the benefit of all such persons so entitled
as aforesaid as either are domiciled in India or not being domiciled there express a desire of
take the benefit of the action.

(4) Subject to the provisions of sub-section (5), the amount recovered in any such action after
deducting any costs not recovered from the defendant, shall be divided between the persons
entitled in such proportion as the Court may direct.

(5) The Court before which any such action is brought may, at any stage of the proceedings
make any such order as appears to the Court to be just and equitable in view of the provisions,
7 [the First Schedule or the Second Schedule or the Third Schedule], as the case may be,
limiting the liability of a carrier and of any proceedings which have been or are likely to be
commenced outside India in respect of the death of the passenger in question.

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Section 6. Conversion of francs. —

Any sum in francs mentioned in rule 22 of the First Schedule or of the Second Schedule, as the
case may be, shall, for the purpose of any action against a carrier, be converted into rupees at
the rate of exchange prevailing on the date on which the amount of damages to be paid by the
carrier is ascertained by the Court.

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 Chapter 4
Case 1:
Supreme Court of India Verdict on M/S Interglobe Aviation Ltd vs N.Satchidanand on
4 July, 2011

Jurisdiction of Permanent Lok Adalat : The Indigo Airlines Conditions of Carriage,

containing the standard terms which govern the contract between the parties provide as follows:
"All disputes shall be subject to the jurisdiction of the courts of Delhi only." The appellant
contends that the ticket related to the travel from Delhi to Hyderabad, the complaint was in
regard to delay at Delhi and therefore the cause of action arose at Delhi; and that as the contract
provided that courts at Delhi only will have jurisdiction, the jurisdiction of other courts were
ousted. Reliance was placed on ABC Laminart v. A.P. Agencies[1989 (2) SCC 163] where this
court held:

"So long as the parties to a contract do not oust the jurisdiction of all the Courts which would
otherwise have jurisdiction to decide the cause of action under the law it cannot be said that
the parties have by their contract ousted the jurisdiction of the Court. If under the law several
Courts would have jurisdiction and the parties have agreed to submit to one of these
jurisdictions and not to other or others of them, it cannot be said that there is total ouster of
jurisdiction. In other words, where the parties to a contract agreed to submit the disputes arising
from it to a particular jurisdiction which would otherwise also be a proper jurisdiction under
the law, their agreement to the extent they agreed not to submit to other jurisdictions cannot be
said to be void as against public policy. If on the other hand, the jurisdiction they agreed to
submit to would not otherwise be proper jurisdiction to decide disputes arising out of the
contract it must be declared void being against public policy. ......From the foregoing decisions
it can be reasonably deduced that where such an ouster clause occurs, it is pertinent to see
whether there is ouster of jurisdiction of other Courts. When the clause is clear, unambiguous
and specific accepted notions of contract would bind the parties and unless the absence of ad
idem can be shown, the other Courts should avoid exercising jurisdiction, as regards
construction of the ouster clause when words like 'alone', 'only, 'exclusive' and the like have
been used there may be no difficulty. Even without such words in appropriate cases the maxim
'expressio unius est exclusio alterius' -expression of one is the exclusion of another may be
applied. What is an appropriate case shall depend on the facts of the case. In such a case
mention of one thing may imply exclusion of another. When certain jurisdiction is specified in

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a contract an intention to exclude all others from its operation may in such cases be inferred. It
has therefore to be properly construed."

[6] (2004) Bom CR 186 The `exclusive jurisdiction clause', as noticed above is a standard
clause that is made applicable to all contracts of carriage with the appellant, relating to
passengers, baggage or cargo anywhere in the country, irrespective of whether any part of the
cause of action arose at Delhi or not. If for example a passenger purchases a ticket to travel
from Mumbai to Kolkata, or Chennai to Hyderabad, which involved travel without touching
Delhi and if such ticket was purchased outside Delhi, obviously the Delhi courts will not have
territorial jurisdiction as no part of the cause of action arises in Delhi. As per the principle laid
down in ABC Laminart, any clause which ousts the jurisdiction of all courts having jurisdiction
and conferring jurisdiction on a court not otherwise having jurisdiction would be invalid. It is
now well settled that the parties cannot by agreement confer jurisdiction on a court which does
not have jurisdiction; and that only where two or more courts have the jurisdiction to try a suit
or proceeding, an agreement that the disputes shall be tried in one of such courts is not contrary
to public policy. The ouster of jurisdiction of some courts is permissible so long as the court
on which exclusive jurisdiction is conferred, had jurisdiction. If the clause had been made to
apply only where a part of cause of action accrued in Delhi, it would have been valid. But as
the clause provides that irrespective of the place of cause of action, only courts at Delhi would
have jurisdiction, the said clause is invalid in law, having regard to the principle laid down in
ABC Laminart. The fact that in this case, the place of embarkation happened to be Delhi, would
not validate a clause, which is invalid.

There is another reason for holding the said clause to be invalid. A clause ousting jurisdiction
of a court, which otherwise would have jurisdiction will have to be construed strictly. In this
case, we are concerned with a clause which provides that all disputes shall be subject to the
jurisdiction of the courts at Delhi only. But in this case, the respondent did not approach a
"court". The claim was filed by the respondent before a Permanent Lok Adalat constituted
under Chapter VI-A of the Legal Services Authorities Act, 1987 (`LSA Act' for short). Section
22C provides that any party to a dispute may, before the dispute is brought before any court,
make an application to the Permanent Lok Adalat for settlement of the dispute. When the
statement, additional statements, replies etc., are filed in an application filed before it, the
Permanent Lok Adalat is required to conduct conciliation proceedings between the parties,
taking into account, the circumstances of the dispute and assist the parties in their attempt to

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reach an amicable settlement of the dispute. If the parties fail to reach an agreement, the
Permanent Lok Adalat is required to decide the dispute. The Permanent Lok Adalats are
authorized to deal with and decide only disputes relating to service rendered by notified public
utility services provided the value does not exceed Rupees Ten Lakhs and the dispute does not
relate to a non- compoundable offence. Section 22D provides that the Permanent Lok Adalat
shall, while conducting the conciliation proceedings or deciding a dispute on merit under the
LSA Act, be guided by the principles of natural justice, objectivity, fair play, equity and other
principles of justice and shall not be bound by the Code of Civil Procedure, 1908 and the Indian
Evidence Act, 1872. Section 22E provides that every award of the Permanent Lok Adalat shall
be final and binding on the parties and could be transmitted to a civil court having local
jurisdiction for execution. Each and every provision of Chapter VIA of LSA Act emphasizes
that is the Permanent Lok Adalat is a Special Tribunal which is not a `court'. As noted above,
Section 22C of the LSA Act provides for an application to the Permanent Lok Adalat in regard
to a dispute before the dispute is brought before any court and that after an application is made
to the Permanent Lok Adalat, no party to the application shall invoke the jurisdiction of any
court in the same dispute, thereby making it clear that Permanent Lok Adalat is distinct and
different from a court. The nature of proceedings before the Permanent Lok Adalat is initially
a conciliation which is non-adjudicatory in nature. Only if the parties fail to reach an agreement
by conciliation, the Permanent Lok Adalat mutates into an adjudicatory body, by deciding the
dispute. In short the procedure adopted by Permanent Lok Adalats is what is popularly known
as `CON-ARB' (that is "conciliation cum arbitration") in United States, where the parties can
approach a neutral third party or authority for conciliation and if the conciliation fails, authorize
such neutral third party or authority to decide the dispute itself, such decision being final and
binding. The concept of `CON-ARB' before a Permanent Lok Adalat is completely different
from the concept of judicial adjudication by courts governed by the Code of Civil Procedure.
The Permanent Lok Adalat not being a `court', the provision in the contract relating to
exclusivity of jurisdiction of courts at Delhi will not apply.

The appellant next contended that even if the jurisdiction clause is excluded from
consideration, only courts and tribunals at Delhi will have jurisdiction as the cause of action
arose at Delhi and not at Hyderabad. The appellant contended that the respondent boarded the
flight at Delhi and the entire incident relating to delay and its consequences took place at Delhi
and therefore courts at Delhi alone will have jurisdiction. This contention is wholly untenable.
The dispute was with reference to a contract of carriage of a passenger from Delhi to

12
Hyderabad. The ticket was purchased at Hyderabad and consequently the contract was entered
into at Hyderabad. A part of the cause of action also arose at Hyderabad as the respondent
clearly alleged as one of the causes for claiming compensation, his illegal detention for an hour
and half at the Hyderabad Airport by the security staff of the appellant when the flight landed.
Therefore, the courts and tribunals at Hyderabad had jurisdiction to entertain the
claims/disputes. Section 22B provides that permanent Lok Adalats shall be established for
exercising jurisdiction in respect of one or more public utility services for such areas as may
be specified in the notification. It is not disputed that the Permanent Lok Adalat for public
utility services, Hyderabad was constituted for the area of Hyderabad and transport services by
way of carriage of passengers by air is a public utility service. Therefore, we hold that the
Permanent Lok Adalat at Hyderabad had jurisdiction to entertain the application against the
appellant.

One of the reasons assigned by the High Court to hold that Permanent Lok Adalat at Hyderabad
had jurisdiction was that the term in the IndiGo conditions of carriage that only courts at Delhi
will have jurisdiction should be ignored as most of the passengers buying tickets from IndiGo
may not read the terms and conditions regarding jurisdiction of courts and therefore, the court
should adopt a liberal approach and ignore such clauses relating to exclusive jurisdiction. The
said reasoning is not sound. The fact that the conditions of carriage contain the exclusive
jurisdiction clause is not disputed. The e-tickets do not contain the complete conditions of
carriage but incorporate the conditions of carriage by reference. The interested passengers can
ask the airline for a copy of the contract of carriage or visit the web-site and ascertain the same.
Placing the conditions of carriage on the web-site and referring to the same in the e-ticket and
making copies of conditions of carriage available at the airport counters for inspection is
sufficient notice in regard to the terms of conditions of the carriage and will bind the parties.
The mere fact that a passenger may not read or may not demand a copy does not mean that he
will not be bound by the terms of contract of carriage. We cannot therefore, accept the finding
of the High Court that the term relating to exclusive jurisdiction should be ignored on the
ground that the passengers would not have read it.

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Case 2:
Mangalore Air Crash & Exclusive Jurisdiction Clause:
The recent Mangalore crash of an Air India flight from Dubai brought to the forefront the yet
untested liability of the air carriers and the compensation due to passengers under the Montreal
Convention of 1999 (“Montreal Convention”) which was ratified by India only last year.

Until recently, India was a signatory to the antiquated Warsaw Convention of 1929 (“Warsaw
Convention”) as amended by The Hague Protocol of 1955 (“Hague Protocol”) which secured
significantly low limits of liability on the carrier in case of death or injury to the passengers or
upon delay, lost or damaged baggage. By virtue of the Carriage by Air (Amendment) Act, 2009
revising the Carriage by Air Act, 1972 (the “Act”), India has ratified the Montreal Convention
securing higher levels of compensation and obviating discrimination for Indian passengers.

This bulletin provides a glimpse into the prior and current international carrier liability in case
of passenger death and bodily injury.

1.0 Status prior to accession of Montreal Convention

1.1 Liability

The Warsaw Convention and Hague Protocol regime provided a maximum liability of air
carriers for bodily injury or death of passengers of 250,000 francs (approximately $46,6663).
This was not only a significantly low compensation but the regime also did not make provision
for any advance payment by the carrier leaving claimants to go against the carriers to seek
compensation. This is evident from the October 2009 ruling in respect of a crash of a domestic
flight of Indian Airlines in 1988 wherein the Gujarat High Court determined an amount of Rs.
7.53 lakhs (approximately $16,700) as compensation based on the income of the victim in 1988
viz., Rs. 1 lakhs (approximately $2,200), likely residual life, potential expenses during residual
life etc. and awarded a 9% interest from the date of filing the appeal. The other interesting
aspect of the judgment is the heavy reliance on verdicts of motor vehicle claims.

1.2 Jurisdiction

The victim or their families were entitled to take action against foreign carriers in the territory
of one of the signatories of the Warsaw Convention which could be either where –
(i) the carrier maintains its principal residence,

(ii) the carrier has its primary location of business,

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(iii) the contract is made, or

(iv) the flight intended to have its final destination.

The Warsaw Convention effectively left it to the claimants, who were not residents of the above
states, to pursue a claim against such carriers in a jurisdiction other than their own which was
not always feasible for claimants.

2.0 Status subsequent to accession of Convention

The Montreal Convention, formally the Convention for the Unification of Certain Rules for
International Carriage, is a treaty adopted in 1999 and amended provisions of the Warsaw
Convention and Hague Protocol concerning compensation for the victims of air disasters. It
unified the rules on international carriage by air and modernized limitation of liability for
international air transport.

2.1 Two-Tier Liability

It introduced a two-tier liability system: (i) a first tier of strict liability for damages of up to
100,000 SDR5 (approximately $155,000) and; (ii) a second tier of liability based on the
presumed fault of the carrier in which case there is unlimited liability.

It is pertinent to note that while the Montreal Convention provides for a first-tier 100,000 SDR
as a strict liability, this amount does not reflect the minimum liability of the carrier. In other
words, the Convention has left the determination of the level of damage to the local law. As
such, if the courts in India rule that the damage sustained by each victim in the Air India crash
is up to 100,000 SDR, the carrier cannot escape liability on the ground that it is not responsible
for the accident.

Furthermore, the compensation package in respect of the second tier of liability is assessed in
accordance with the provisions of the Act which incorporates the Montreal Convention.
Globally, under this Convention, the amount of compensation is worked out in each case
separately on “proof of loss basis” and determined and dependent upon the parameters of loss
suffered by each passenger or claimant namely, the age of the deceased, educational status,
employment with salary, earning capacity, dependants, general economic status etc. In the
event, the claimants challenge such compensation amount, and where damages of more than
100,000 SDR are sought, the airline would have the burden of proof that the incident was not

15
on account of its negligence and may thereby avoid liability by proving that the accident which
caused the injury or death was attributable to the negligence of a third party.

2.2 Jurisdictional Flexibility

In addition to the options provided under the Warsaw Convention and Hague Protocol, the
Montreal Convention added a “fifth” jurisdiction namely the principal and permanent residence
of the passenger provided the carrier operates in such jurisdiction and such territory is a
signatory to the Convention. This would ensure that Indian residents can claim in the Indian
courts against any airline as long as such journey is ratified by the Convention. Given that the
determination of damages under the Convention is a matter of the local law, the jurisdiction
where a claimant brings an action becomes significant as the assessment of damages may vary
from one jurisdiction to another.

CONCLUSION

The enforcement of exclusive choice of court agreements, where there is a clear obligation not
to bring proceedings other than in the contractually specified court, is a highly significant
aspect of international civil litigation. The common law learning in this respect is fairly clear.
The starting point is the enforcement of a contractual agreement, even if the ending point is the
balancing required by the procedural jurisdiction context. There are still many questions that
remain outstanding, and the standards for allowing the parties to breach the agreement may not
be the same in common law jurisdictions, but the basic contractual theme is clear. At a broader
level, the respect for party autonomy in the selection of dispute resolution fora is fast gaining
ground, beyond the realm of international arbitration, to that of cross-border litigation. The
current project on choice of court agreements at The Hague Conference on Private International
Law is compelling testimony of the importance of such techniques in the channelling of cross-
border disputes today, even if this may not translate to contractual enforcement of such
agreements.

The contractual theme is very important in the analysis of the exclusive jurisdiction agreement.
It provides the rationale for a test different from merely weighing the different factors in the
natural forum doctrine. It explains why the burden is always on the party seeking to depart
from the agreement to justify that departure, and why that justification must be based on
exceptional circumstances amounting to strong cause, even if the same factors are being
considered as in the natural forum doctrine. It explains why an exclusive jurisdiction agreement
can sometimes be binding only unilaterally. It explains the parity of approach towards the

16
enforcement of jurisdiction agreements in both the exercise of jurisdiction as well as the anti-
suit injunction context.

It provides the explanation for the nascent remedy of damages for losses caused by breaches
of jurisdiction agreements. It has shown how arbitration agreements are enforced, and can show
the way forward in respect of how other types of dispute resolution agreements can be enforced.
Most importantly, in the context of this article, it shows how non-exclusive jurisdiction
agreements can and should be approached.

Non-exclusive jurisdiction agreements are equally important as, if not more important than,
exclusive jurisdiction agreements in cross border civil litigation, not only because they are very
frequently used today to engender greater flexibility in the choice of litigation forum, but also
because they have not been subject to as close scrutiny as exclusive jurisdiction agreements.
This article has argued that the contractual analysis of the exclusive jurisdiction agreement is
equally applicable to the non-exclusive jurisdiction agreement. The only distinction between
the two types of agreements lies in the content and scope of the bargain.

The practical consequence of the analysis in this article is that more attention should be paid to
the drafting of jurisdiction agreements, especially in the case of non-exclusive jurisdiction
agreements. The effect of the agreement on the question whether a particular forum will
eventually exercise its jurisdiction to hear the substantive merits of the dispute is ultimately
outside the control of the contracting parties because that is a question of that forum’s
procedural law in the conflict of laws sense. However, the strong emphasis given in this context
to the enforcement of contractual rights in common law countries should provide enough
incentive for contracting parties to spell out their respective rights and obligations in respect of
the choice of litigation forum more explicitly, especially once the intention goes beyond the
simple case of a mutually binding exclusive choice of court agreement.

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Bibliography:

1. J. D. Kovar, Letter from US Assistant Legal Adviser, to J.H.A. van Loon, Secretary
General of “The Hague Conference on Private International Law”, 22 February 2000.
2. Convention on Choice of Court Agreements, Concluded 30 June 2005, Hague
Conference on Private International Law.
3. https://indiankanoon.org/doc/323576/
4. Notification Regarding Application of the Carriage By Air Act, 1972, To Carriage By
Air Which Is Not International
5. ICAO Review Work Paper
6. Regulation (EC) No. 889/2002 on air carrier liability in the event of accidents of the
Europan Parliament.
7. Liability of Carrier for Non International Carraige by Air: The Act and allied
provisions.

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