Jurisdiction Agreements: Exclusive, Optional and Asymmetrical

(2015) 11 Journal of Private International Law 345-378

Griffith University Law School Research Paper No. 16-06

32 Pages Posted: 16 Apr 2016 Last revised: 31 Aug 2017

See all articles by Mary Keyes

Mary Keyes

Griffith University - Griffith Law School

Brooke Marshall

University of New South Wales (UNSW) - Faculty of Law & Justice

Date Written: November 23, 2015

Abstract

The paradigm of the jurisdiction agreement designates a single, exclusive forum, allowing each party to determine, in advance of a dispute, the forum for litigation. The principles governing the enforcement of jurisdiction agreements are largely designed for this model. Some parties draft agreements that differ from this model, including agreements that purport to nominate multiple courts with “exclusive” jurisdiction, and unilateral optional agreements giving one party an option to select the forum after a dispute arises. These features raise the question of whether principles developed for the exclusive model regulate jurisdiction agreements that depart from it. This article explores the approach to exclusivity under the Hague Choice of Court Convention, the Brussels I Recast, and at common law. We demonstrate that non-uniquely “exclusive” and unilateral optional jurisdiction agreements are uncomfortably accommodated within and inconsistently treated by these regimes, comparing, particularly, the acceptance of unilateral optional agreements in England with their rejection in France.

Keywords: Private international law, jurisdiction agreements, choice of court, Hague Choice of Court Convention, Brussels I Recast Regulation

JEL Classification: K33

Suggested Citation

Keyes, Mary and Marshall, Brooke, Jurisdiction Agreements: Exclusive, Optional and Asymmetrical (November 23, 2015). (2015) 11 Journal of Private International Law 345-378, Griffith University Law School Research Paper No. 16-06, Available at SSRN: https://ssrn.com/abstract=2764753

Mary Keyes (Contact Author)

Griffith University - Griffith Law School ( email )

Nathan Campus, GU
Nathan 4111
Australia

Brooke Marshall

University of New South Wales (UNSW) - Faculty of Law & Justice ( email )

Kensington, New South Wales 2052
Australia

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