Asymmetric Jurisdiction Clauses

by Brooke Marshall

Overview

Asymmetric jurisdiction clauses, giving one party a right to choose the forum for litigation after a dispute has already arisen, are widespread in international commercial contracting. And yet for close to a decade their enforceability and effects under EU law have been uncertain, with seven different competing decisions from France's highest court progressively contributing to the murky waters. From the interpretation of material changes to the Brussels I Recast Regulation, to obiter comments by English judges as to whether the 2005 Hague Choice of Court Convention on 'exclusive' jurisdiction clauses applies to asymmetric clauses, how can lawyers balance certainty, flexibility, and risk in this difficult legal landscape? This book explores this conundrum and aims to bring clarity to the current law on asymmetric jurisdiction clauses in the EU, England, and Contracting States to the Hague Convention 2005. It seeks to prompt practitioners and scholars to reflect carefully and critically on how and why asymmetric clauses are used, whether courts will -and should- hold businesses to them, and how both the law and the clauses themselves could be better designed in the future.

Product Details

ISBN-13:	9780192638359
Publisher:	OUP Oxford
Publication date:	03/30/2023
Series:	Oxford Private International Law Series
Sold by:	Barnes & Noble
Format:	eBook
Pages:	376
File size:	777 KB

About the Author

Dr Brooke Marshall is an Associate Professor of the Faculty of Law, University of Oxford, and a Tutorial Fellow in Law at St Edmund Hall, Oxford.

Table of Contents

1. Introduction2. Jurisdiction and types of jurisdiction by agreement: EU and common law perspectives3. Justifications for party autonomy in the context of asymmetric jurisdiction clauses4. Applicability of the 2005 Hague Choice of Court Convention to asymmetric jurisdiction clauses5. Effects of asymmetric jurisdiction clauses under the Recast and 2007 Lugano Convention, and their relationship with Third State court proceedings6. Enforceability of asymmetric jurisdiction clauses before EU Member State courts7. Interpretation, enforceability, and effects of asymmetric jurisdiction clauses under English law8. Relevance of the European Convention on Human Rights and Charter of Fundamental Rights of the EU to the enforcement of asymmetric clauses in the EU and England9. Asymmetric jurisdiction clauses and the law - rethink and redesign

Editorial Reviews

"Dr Marshall refers to an unparalleled amount of sources in an impressive amount of languages, both with respect to scholarship and case-law. Similarly, the author's efforts to collect a number of empirical data must be commended, ditto for the rigorous overview and classification of case-law. This book is a very rigorous effort to map the many technical and less technical issues of a very specific issue in PrivIL which to those in the field is a goldmine." — Honourable mention, 2024 ANZSIL Book Prize category

"...an extremely rich piece of scholarship." — UNSW Law Journal

"In Asymmetric Jurisdiction Clauses, Brooke Marshall plugs a growing hole in the literature on jurisdiction clauses, and she plugs it tightly." — UNSW Law Journal Forum

"Asymmetric Jurisdiction Clauses provides a thorough doctrinal, empirical, and economic analysis of the existing rules on international jurisdiction and jurisdiction agreements,...While brilliantly doing so, the author does not forget to propose a model asymmetric jurisdiction clause suitable for use by practitioners and their clients." — ICC Bulletin

From the Publisher