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Contents
- Preliminary Material
- Main Text
- 1 Introduction
- Preliminary Material
- I Asymmetric treatment of asymmetric jurisdiction clauses
- II The reaction and the problems stated
- III The inquiry and the legal systems in question
- IV The effects of Brexit and assumptions made
- V The rise of asymmetric jurisdiction clauses: Article 17(4) of the Brussels Convention
- VI Types of asymmetric jurisdiction clauses
- VII The structure of this work
- VIII A note to readers on translated words
- 2 Jurisdiction and types of jurisdiction by agreement: EU and common law perspectives
- Preliminary Material
- I Introduction
- II Jurisdiction
- III Jurisdiction by agreement
- 2.12
- A General features
- B Motivations for and functions of jurisdiction clauses: Why exclusive, non-exclusive, or asymmetric?
- C Use of asymmetric, exclusive, and non-exclusive clauses in practice
- IV Conclusion
- 3 Justifications for party autonomy in the context of asymmetric jurisdiction clauses
- Preliminary Material
- I Introduction
- II Justifications, foundations, and functions of party autonomy compared
- III Party autonomy as a means to an end: Outcome-based justifications
- 3.06
- 3.07
- A Benefits to the parties
- B Systemic benefits
- C Conclusion
- IV Party autonomy as an end in itself: Libertarian, deontological, and rights-based justifications for jurisdictional party autonomy
- V Conditions to and assumptions of these justifications
- VI Conclusion: ‘ “Freedom of the parties” is not the same thing as freedom of a party’
- 4 Applicability of the 2005 Hague Choice of Court Convention to asymmetric jurisdiction clauses
- Preliminary Material
- I Introduction
- II Determining whether a clause is exclusive
- III Rothschild clauses as ‘exclusive’
- 4.08
- A Exclusive irrespective of the proceedings brought?
- B Exclusive if the non-option holder sues in the anchor court?
- C Exclusive if only the option holder sues and only in the anchor court?
- D Exclusive if only the option holder sues and only pursuant to its option?
- E Exclusive because only one party is bound?
- IV Unilateral non-exclusive clauses as ‘exclusive’
- V Conclusion
- 5 Effects of asymmetric jurisdiction clauses under the Recast and 2007 Lugano Convention and their relationship with Third State court proceedings
- Preliminary Material
- I Introduction
- II Interpretation of asymmetric clauses as to their effects
- 5.06
- A On which court(s) do asymmetric clauses confer jurisdiction?
- B What effects do asymmetric jurisdiction clauses have under the Recast and 2007 Lugano Convention?
- 5.35
- 1 Effects of exclusive jurisdiction
- 2 Effects of non-exclusive jurisdiction
- 3 Effects of non-uniquely exclusive jurisdiction
- 4 Interim conclusions
- 5 The rebuttable presumption of ‘exclusivity’
- 6 Effects and presumption applied to asymmetric clauses
- C Conclusion
- III Which court is ‘the decider’?
- 5.87
- 5.88
- 5.89
- 5.90
- 5.91
- 5.92
- A Article 31(2) and res judicata under the Recast
- B Characterizing Rothschild clauses for the purposes of article 31(2) of the Recast
- C Problems with applying article 31(2) to Rothschild clauses
- D A solution
- E Conclusion
- IV Conclusion
- 6 Enforceability of asymmetric jurisdiction clauses before EU Member State courts
- Preliminary Material
- I Introduction
- II Enforceability requirements under the Recast and 2007 Lugano Convention
- 6.04
- A ‘Precision of … content’
- B Form and evidence of factual consensus
- C Substantive validity
- 6.30
- 6.31
- 6.32
- 6.33
- 1 Exclusive and non-exclusive jurisdiction clauses
- 6.34
- a) Characterization: What issues are covered by ‘substantive validity’?
- 6.35
- 6.36
- 6.37
- aa) All aspects of validity, including issues of form?
- bb) All aspects of validity, except those as to form?
- cc) All aspects of validity except those as to form or consent in fact?
- dd) All aspects of validity except those as to form, consent in fact, or public policy?
- ee) A question of the juridical nature of the clause?
- b) Which law applies to substantive validity?
- 6.49
- aa) Law applicable according to the choice-of-law rule
- bb) Overriding mandatory rules and ordre public international of the chosen court (assuming the law of the chosen court is, under its choice-of-law rules, not the applicable law and another court is seised)?
- cc) Overriding mandatory rules and ordre public international of the forum?
- 2 Asymmetric jurisdiction clauses
- 3 Conclusion
- III Prohibition of abuse of rights under EU and national law
- IV Conclusion
- 7 Interpretation, enforceability, and effects of asymmetric jurisdiction clauses under English law
- Preliminary Material
- I Introduction
- II Interpretation
- III Enforceability
- IV Effects of asymmetric jurisdiction clauses
- 7.59
- 7.60
- 7.61
- 7.62
- 7.63
- A The exclusive/non-exclusive dichotomy
- B Ancillary procedural clauses
- C Implications of the jurisdictional ‘hierarchy’
- D Asymmetric clauses and parallel proceedings
- E Summary
- V Relief for breach
- VI Conclusion
- 8 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 England
- Preliminary Material
- I Introduction
- II The right to a fair trial
- III Amenability of fair trial guarantees to contractual waiver
- IV Balancing the non-option holder’s rights with the option holder’s freedom to conduct a business?
- V Conclusion: ‘Reasons to avoid unilaterals’?
- 9 Conclusion: Asymmetric jurisdiction clauses and the law—rethink and redesign
- Preliminary Material
- 9.01
- I Qualifying the capacity of asymmetric jurisdiction clauses to manage substantive risk
- II Most asymmetric clauses confer jurisdiction on only one State’s courts
- III Recasting the Recast for asymmetric clauses
- IV Drafting asymmetric clauses for the 2005 Hague Choice of Court Convention
- V Drafting asymmetric clauses to avoid the Recast’s article 31(2) anomaly
- VI Drafting asymmetric clauses for French courts
- VII Long live Lugano. And … Gasser?
- VIII Drafting asymmetric clauses for English courts
- IX Asymmetric jurisdiction clauses in asymmetric relationships?
- 1 Introduction
- Further Material