The Legal Regulation and Enforcement of Asymmetric Jurisdiction Agreements in the European Union

Abstract:

This article examines the legal regulation and enforcement of asymmetric choice of court agreements under the Brussels I Regulation (Recast). The two significant and related issues of the effectiveness of asymmetric jurisdiction agreements under Art. 25 of the Recast Regulation and whether proceedings commenced in the primary nonexclusive court identified in the agreement should trigger the application of Art. 31(2) of the Recast Regulation are analyzed. Notwithstanding, the rulings of the French Cour de Cassation in Rothschild and ICH v. Credit Suisse, it will be argued that asymmetric choice of court agreements should in principle be effective under Art. 25 of the Recast Regulation from the perspectives of validity, certainty, form and fairness.

The validity and effectiveness of asymmetric jurisdiction agreements in the jurisprudence of the English courts is already well established. There also exists some support for the argument that proceedings initiated in the English courts (as the primary nonexclusive court identified in the clause) may invoke the protective cover of Art. 31(2) of the Recast Regulation where the borrower in an international finance agreement has breached his obligation to sue exclusively in the English courts.