Imbalanced Jurisdiction Clauses Under the Lugano Convention

Zeitschrift für Europäisches Privatrecht, Vol. 24, No. 2, 2016, pp. 515-527

14 Pages Posted: 13 May 2016 Last revised: 25 Nov 2018

See all articles by Brooke Marshall

Brooke Marshall

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

Date Written: April 1, 2016

Abstract

Asymmetrical or imbalanced jurisdiction clauses are a regular feature of standard form loan facility contracts. These clauses generally comprise two elements: an exclusive limb nominating the courts of one jurisdiction purporting to apply to both parties and an option allowing one party to seise the courts of other jurisdictions. Imbalanced clauses are considered an effective risk-management mechanism for the option holder which has both the security of defending proceedings in its place of domicile and the flexibility of initiating proceedings in the most attractive forum at the time of the dispute. In ICH v Crédit Suisse, the French Cour de cassation held that such clauses, which allow one party greater scope to choose the forum for litigation and which do not specify the objective elements on which this choice is to be based, create an imbalance between the parties and are contrary to the Lugano Convention’s objectives of predictability and legal certainty. After consideration of the Lugano regime and the scarce case-law of other superior national courts in the European Union on imbalanced clauses, this article examines the reasoning of the Cour de cassation. It situates the court’s criteria, the lack of “objective elements” and imbalance between the parties, within CJEU jurisprudence establishing autonomous requirements for jurisdiction agreements before assessing the relevance of national law, in particular its ordre public international, to the question of substantive validity. The article also highlights the relevance of important differences between the Lugano Convention and the reformed Brussels I Recast Regulation. The judgment of the Cour de cassation shows that whether asymmetrical or imbalanced optional clauses are compatible with those instruments remains unresolved and, far from being an acte clair, calls for a preliminary ruling of the CJEU.

Keywords: Private international law, jurisdiction agreements, choice of court, optional, unilateral, asymmetrical, imbalanced, Lugano Convention, Brussels I Recast Regulation, French case law, legal certainty, party autonomy, ordre public international, substantive validity

Suggested Citation

Marshall, Brooke, Imbalanced Jurisdiction Clauses Under the Lugano Convention (April 1, 2016). Zeitschrift für Europäisches Privatrecht, Vol. 24, No. 2, 2016, pp. 515-527, Available at SSRN: https://ssrn.com/abstract=2766998

Brooke Marshall (Contact Author)

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

Kensington, New South Wales 2052
Australia

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