Originally from European International Arbitration Review

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I. Introduction

There are numerous reasons why parties start proceedings in the courts of one State rather than in those of another. They range, as the case law also shows,  from differences in procedures  and applicable rules of evidence  to variations in the efficacy and speed of judicial proceedings.  Familiarity with a given system,  the language to be used in a particular court,  the court’s reputation for fairness (or home court bias),  “the quality and ability of the judiciary and the legal profession,”  the cost of court proceedings,  and the ease of enforcement of the judgment  may also influence the choice. Moreover, commentators have identified the “legal climate”  as another reason for favoring the court of one State over that of another. Finally, differences in the conflict of laws rules may also affect the parties’ choice of forum. 

Once the parties have initiated proceedings in a particular court, the law of the forum may operate to limit the autonomy of the parties. In other words, once the parties have started court proceedings, a legal framework is imposed upon them which provides for certain rules with which they must necessarily comply and cannot opt out of.  When parties opt for arbitral proceedings instead of court proceedings, there is also a legal framework—that for arbitration proceedings—but it is generally less restrictive  and more flexible.