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4 Applicability of the 2005 Hague Choice of Court Convention to asymmetric jurisdiction clauses

From: Asymmetric Jurisdiction Clauses

Brooke Marshall

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 03 March 2024

Subject(s):
Choice of court and jurisdictional agreements — Applicable law — Jurisdictional agreement — Jurisdiction

This Chapter considers whether the 2005 Hague Choice of Court Convention applies to asymmetric jurisdiction clauses. It examines the cogency of suggestions made in obiter in some first instance English cases, notably Etihad Airways PJSC v Flöther and Clearlake Shipping Pte Limited v Xiang Da Marine Pte Ltd, that it does. Those suggestions challenge the orthodox view, supported by the travaux préparatoires to the Convention, that asymmetric jurisdiction clauses are not ‘exclusive choice of court agreements’ for its purposes. The Chapter explores five ways in which the Convention could conceivably apply to the most common type of asymmetric jurisdiction clauses: Rothchild clauses. It proceeds to consider the Convention’s possible application to another type of asymmetric clause: a unilateral non-exclusive clause.

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