Unilateral Jurisdiction Agreements In Europe

European courts have taken differing positions on whether such “unilateral or asymmetrical” jurisdictional agreements should be valid or not. While ordinary courts regularly accept these agreements as legitimate and enforceable, other courts, including the French courts, have refused their validity. [2] One of the most debated decisions in this regard is the decision of the French Court of Cassation in the Rothschild case [3] concerning a dispute between a French national based in Spain and a Rothschild Group bank in Luxembourg. The jurisdictional agreement provided for the exclusive jurisdiction of national courts in Luxembourg, while recognizing the Bank`s right to initiate proceedings “at the client`s home or before another competent court.” [4] The French Court of Cassation repealed the jurisdiction clause and argued that it was “contrary to the purpose and purpose of the jurisdictional procedure under Article 23 of the [Brussel] Regulation.” [5] Brussel Recast Regulation does not expressly deal with unilateral or asymmetrical jurisdiction clauses. However, one of the most important questions in this regard is whether unilateral or asymmetrical jurisdiction clauses under the Brussels Regulation can or cannot be characterized as `exclusive for agreements`. The characterization of a jurisdiction clause as only provided for by the Brussels Regulation can have important consequences for the parties concerned. For example, the Brussels overhaul regulation combines its solvency requirements with the exclusivity of a jurisdiction clause. Therefore, only exclusive jurisdiction clauses are subject to the Brussels redesign regulation, which prevents the application of the principle of first use and the guarantee of effective application. Finally, I would like to say that the validity of unilateral or asymmetrical jurisdiction clauses must always be assessed on a case-by-case basis, taking into account the specificities of the parties, the subject matter of the dispute and the circumstances of the conclusion of the contract. In the event that there are no special circumstances justifying a different approach, the principle of party autonomy should prevail. [1] Mary Keyesa and Brooke Adele Marshallb, “Jurisdiction agreements: exclusive, optional and asymmetrical” (2015) 11/3 Journal of Private International Law 345-378, 345. Unilateral (or asymmetrical) jurisdiction clauses may vary in form and nature.

However, these clauses allow only one of the parties to choose the dispute resolution forum between the parties. In a 2015 decision, the Supreme Court of France again ruled that unilateral court clauses are not applicable. The decision was taken within the framework of the Lugano Agreement, which defines jurisdiction between EU Member States and Switzerland, Norway and Iceland, but which, if necessary, is the same as the Brussels I regulation. In a very brief decision, the Court followed its earlier decision in 2012. The Court criticized the Court of Appeal for failing to consider the extent to which the imbalance was contrary to the objectives of predictability and legal certainty under Section 23 of the Lugano Convention. The case is now retried, with the new decision of the new Court of Appeal before the Court of Cassation perhaps again being challenged.