Asymmetric Jurisdiction Clauses

Abstract

This book examines the law, theory, and practice relating to the enforceability, effects, and use of asymmetric jurisdiction clauses in international commercial contracts. The focus is on EU law, as applied by German and French courts, the English common law and the 2005 Hague Choice of Court Convention. Widespread in international contracts, asymmetric jurisdiction clauses allow one party to choose the forum for litigation after a dispute arises. The most common type requires one party to sue in a jurisdiction, named in the clause, but allows the other party to choose whether to sue there in addition to, or instead of, elsewhere. For almost a decade, the enforceability and effects of asymmetric jurisdiction clauses have been uncertain. As to enforceability, uncertainty lurks principally in seven competing decisions of France’s highest court, ostensibly on application of EU law. Uncertainty as to their effects has multiple causes: one, a suite of material changes to the EU’s Brussels I Recast Regulation, and its interpretation by English and German appellate courts; another, a number of obiter comments, by English judges, as to whether the 2005 Hague Choice of Court Convention on ‘exclusive’ jurisdiction clauses applies to asymmetric ones. Overlaying a number of these issues is how fundamental rights may intervene. This book aims to clarify the current law on asymmetric jurisdiction clauses. It also seeks to prompt practitioners and scholars to reflect carefully on how an asymmetric clause is used, and how both the clause and the law could be better designed.