Asymmetric jurisdiction clauses are clauses that contain different provisions concerning the jurisdiction of each party. They are widely used in international financial markets. However, several European legal systems have questioned the validity of this form of agreement. In addition, after Brexit, there could be a growing focus on alternative methods of implementing the Hague Convention and on common law, claims for compensation and injunctions against legal action. In addition to recent developments in the case law and the impact of Brexit, this article will stress that all these issues can only be resolved when the various promises contained in a given agreement are properly identified and interpreted. Once this has been done, there is no reason why the asymmetric nature of a clause should be a blocking bar for its application. Applying asymmetric clauses can be difficult. Some legal systems give the impression that they depart from the fundamental principle of agreement between the parties. In China, for example, such clauses are prohibited. Users of asymmetrical clauses should be aware of potential difficulties in order not to be forced into litigation in an unknown or undesirable forum.
1 As Fentiman, R, International Commercial Litigation (2nd Edn, Oxford 2015) [2.05] Dispute settlement clauses in commercial transactions now generally settle all aspects of a dispute, including the notification mechanism for termination, waiver of opposition to jurisdiction or enforcement, reparations, etc. This article will focus on the central aspect of these agreements, that is, the mechanism and place of dispute resolution. The concepts of a jurisdictional convention (which tends to be used in the common law) and the choice of the judicial agreement (often used in international conventions) are used to describe this essential aspect of a dispute settlement clause. 50 See Anterist in C-22/85 : “Since Article 17 of the Convention incare the principle of autonomy of the parties to designate the competent courts or jurisdictions, the third paragraph of this provision must be interpreted in such a way as to preserve the common intention of the parties at the conclusion of the contract.” Meeth C-23/78 : “This interpretation is justified on the basis that Article 17 is based on the recognition of the independent will of the parties to decide which jurisdictions are competent to resolve disputes within the scope of the convention … ` (Added highlight).