Nischa Vreeling’s thesis examines the compatibility of asymmetric jurisdiction clauses with the Brussels regime and explores possibilities for enhancing their regulation in light of the 2012 French Rothschild case.
In Chapter I, the thesis analyses asymmetric choice of court from a historic and systemic perspective. Although changes to the regime from the Brussels Convention to Brussels Ibis led to uncertainties and complexities surrounding the treatment of asymmetric jurisdiction clauses, the Brussels regime sets out a strong policy favouring party autonomy and asymmetric clauses should be valid in the EU. Difficulties arise, however, with the scope and interpretation of the reference to the lex fori prorogati in Article 25 and the reverse lis pendens rule of Article 31(2) Brussels Ibis.
In Chapter II, the thesis examines how the courts of the Member States treat asymmetric jurisdiction clauses. While most Member States’ courts have upheld asymmetric clauses, there are notable issues that could impact their operation. These issues can be traced back to the Brussels regime’s preclusion of judicial review of enforceability. In the absence of guidance on this issue, some national courts rely on domestic ‘catch all’ provisions effectively broadening the scope of the reference to the lex fori prorogati from contractual validity to include enforceability.
In Chapter III, the thesis explores whether the 2005 Hague Choice of Court Convention may offer insights for the regulation of asymmetric jurisdiction clauses under the Brussels regime. Firstly, the thesis argues that asymmetric choice of court is not compatible with the Convention as these clauses bring the risk of concurrent litigation and irreconcilable judgments, which the Convention does not regulate. Moreover, the Convention includes provisions on the enforceability of choice of court clauses. However, as the Contracting States to the Convention do not operate under a principle of mutual trust, its provisions on enforceability may be less suited for application in the EU.
Chapters IV and V analyses the operation of asymmetric choice in the PRC and USA. In both jurisdictions, the courts have enforced asymmetric jurisdiction clauses. Their regulation of enforceability differs, however. For example, PRC civil procedure law does not obligate courts from enforcing exclusive choice of court agreements nominating foreign courts. In the US, the Bremen case provides the framework for choice of court.
Bremen sets out a strong policy favouring party autonomy and provides a catch all provision: choice of court should be given full effect unless one of the parties would effectively be deprived of its day in court.
In its Conclusion, the thesis proposes solutions to the issues set out in the previous Chapters. The thesis suggests that the conflict rule of Article 25 of the Brussels Ibis Regulation should be understood as referring to the law of the exclusively chosen court, unless the beneficiary brings an action before an optional court as per the clause. In such instances, the law of the court where the action is brought should be applied. Moreover, the thesis proposes a new provision for lis pendens under asymmetric choice of court agreements which preserves the intended benefits for the beneficiary while minimising the risk of parallel proceedings and irreconcilable judgments in the EU. Finally, the thesis argues that the Brussels regime should adopt rules on enforceability that respect its policies on party autonomy while eliminating the need for recourse to national law in matters of enforceability. In this regard, the thesis proposes that courts should apply Article 47 CFR on the right to an effective remedy: (asymmetric) choice of court should be given effect, unless it effectively denies the parties from an effective remedy.
Supervisors: prof. mr. dr. Mathijs ten Wolde and mr. dr. Jan-Ger Knot.
Nischa Vreeling
Asymmetric Choice of Court under Brussels Ibis