Unilateral Jurisdiction Clauses: The Case for Invalidity, Severability or Enforceability

Journal of International Arbitration 31, no. 1 (2014): 19–46

32 Pages Posted: 26 Dec 2014

See all articles by Deyan Draguiev

Deyan Draguiev

Honourable Society of the Inner Temple; Vienna International Arbitral Centre; World Intellectual Property Organization - Arbitration & Mediation Center; University of Manchester - School of Law; Saint Clement of Ohrid University of Sofia - Faculty of Law

Date Written: January 31, 2014

Abstract

This article presents a study of the so-called ‘unilateral’ (‘optional’, ‘hybrid’) jurisdiction clauses combining arbitration and choice of court options, which business tends to favour as such clauses seek to designate a method of dispute resolution that provides a more favourable position for one of the parties to an agreement and ensure better enforcement against a debtor’s assets. However, there are a growing number of jurisdictions where courts have issued decisions that declare such clauses either invalid or as having a significant defect. This study makes a review of both common law and continental jurisdictions and focuses particularly on a number of decisions issued recently in continental jurisdictions making an assessment of the arguments that are typically employed by courts in order to find that a unilateral clause is invalid. Finally, this study proposes a method of interpretation of unilateral jurisdiction clauses which favours their validity or, where there is a significant defect, proposes partial invalidity and severance instead of invalidity of the entire clause.

Keywords: conflict of laws; private international law; jurisdiction; arbitration; Brussels I; hybrid clauses; unilateral clauses; international civil litigation; transnational litigation

JEL Classification: K41; K33

Suggested Citation

Draguiev, Deyan, Unilateral Jurisdiction Clauses: The Case for Invalidity, Severability or Enforceability (January 31, 2014). Journal of International Arbitration 31, no. 1 (2014): 19–46. Available at SSRN: https://ssrn.com/abstract=2542591

Deyan Draguiev (Contact Author)

Honourable Society of the Inner Temple ( email )

The Inner Temple
EC4Y
London
United Kingdom

Vienna International Arbitral Centre ( email )

Wiedner Hauptstraße 63
Vienna
Austria

World Intellectual Property Organization - Arbitration & Mediation Center ( email )

34, chemin des Colombettes
1211 Geneva 20
Switzerland

University of Manchester - School of Law

Manchester M13 9PL
United Kingdom

Saint Clement of Ohrid University of Sofia - Faculty of Law

15 Tsar Osvoboditel Blvd
15 Tsar Osvoboditel Blvd
Sofia, 1000
Bulgaria

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