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2 Jurisdiction and types of jurisdiction by agreement: EU and common law perspectives

From: Asymmetric Jurisdiction Clauses

Brooke Marshall

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 21 April 2024

Contractual agreements on jurisdiction — Exclusive forum clauses — Jurisdictional agreements and the Brussels Regulation — Jurisdictional agreements and the common law — Jurisdiction and procedural connection with England — Jurisdictional agreement — Jurisdiction

This Chapter introduces exclusive, non-exclusive, and asymmetric jurisdiction clauses from an EU law and a common law perspective. It demonstrates that each type of jurisdiction clause represents a different response to uncertainties that prevail at the time of contracting. Building on that differentiation, it examines the various factors informing parties’ preferences for an exclusive, non-exclusive, or asymmetric clause. In particular, it scrutinizes the oft-made claim that option holders need the flexibility that an asymmetric clause affords them, in order to manage their substantive risk under the contract. The results of a previously unpublished empirical study on the use of asymmetric jurisdiction clauses in financial markets, together with French, German and English case law, are analysed to illuminate how, how often, and in which kinds of contracts asymmetric jurisdiction clauses are used. This analysis draws on documents from key industry associations, including the International Swaps and Derivatives Association, Loan Market Association, and International Chamber of Commerce.

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