Asymmetric Jurisdiction Clauses

Asymmetric jurisdiction clauses, which give one party the right to choose the forum for litigation after a dispute has arisen, are common in international commercial contracting. Their enforceability and effects under EU law have been uncertain, with seven different competing decisions from France's highest court contributing to the murky waters. This book explores this conundrum and aims to bring clarity to the current law on asymmetric jurisdiction clauses in the EU, England, and Contracting States to the Hague Convention 2005, prompting practitioners and scholars to reflect carefully and critically on how and why asymmetric clauses are used, whether courts will hold businesses to them, and how both the law and the clauses themselves could be better designed in the future.

Format: Hardback
Length: 416 pages
Publication date: 24 March 2023
Publisher: Oxford University Press

Asymmetric jurisdiction clauses, which grant one party the right to select the forum for litigation after a dispute has arisen, are commonly used in international commercial contracting. However, their enforceability and effects under EU law have been uncertain for nearly a decade, with seven different competing decisions from France's highest court contributing to the murky waters. This book explores this conundrum and aims to bring clarity to the current law on asymmetric jurisdiction clauses in the EU, England, and Contracting States to the Hague Convention 2005. It seeks to prompt practitioners and scholars to reflect carefully and critically on how and why asymmetric clauses are used, whether courts will and should hold businesses to them, and how both the law and the clauses themselves could be better designed in the future.

The interpretation of material changes to the Brussels I Recast Regulation, the application of the 2005 Hague Choice of Court Convention on exclusive jurisdiction clauses to asymmetric clauses, and obiter comments by English judges regarding the applicability of the convention to asymmetric clauses are just a few of the issues that this book addresses. It examines the interplay between certainty, flexibility, and risk in this complex legal landscape and provides insights into how lawyers can balance these factors when drafting and negotiating asymmetric jurisdiction clauses.

One of the key challenges in interpreting asymmetric jurisdiction clauses is determining whether they are enforceable under EU law. While some scholars argue that they are compatible with EU law, others suggest that they may be contrary to the principles of freedom of movement and choice of law. The book explores these arguments and provides a comprehensive analysis of the relevant case law and legal principles.

Another issue that this book addresses is the role of courts in holding businesses to asymmetric jurisdiction clauses. While some courts have held that businesses must comply with these clauses, others have taken a more flexible approach. The book examines the different approaches taken by courts in different jurisdictions and provides guidance on how businesses can best ensure that their rights and interests are protected.

In addition to examining the legal issues, this book also considers the practical implications of asymmetric jurisdiction clauses. It explores how businesses can use these clauses to their advantage and how they can mitigate the risks associated with them. The book provides examples of successful and unsuccessful use of asymmetric jurisdiction clauses and offers insights into how businesses can best navigate this complex legal landscape.

Overall, this book is a valuable resource for practitioners and scholars interested in the law of asymmetric jurisdiction clauses. It provides a comprehensive analysis of the current law and offers practical guidance on how to navigate this complex legal landscape. By reflecting carefully and critically on the issues raised in this book, practitioners and scholars can help to shape the future of the law on asymmetric jurisdiction clauses and ensure that they are used in a way that promotes certainty, flexibility, and risk management.

Weight: 824g
Dimension: 252 x 175 x 25 (mm)
ISBN-13: 9780198868040