Jurisdiction Agreements: Exclusive, Optional and Asymmetrical
(2015) 11 Journal of Private International Law 345-378
32 Pages Posted: 16 Apr 2016 Last revised: 31 Aug 2017
Date Written: November 23, 2015
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: Suggested Citation