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6 Enforceability of asymmetric jurisdiction clauses before EU Member State courts

From: Asymmetric Jurisdiction Clauses

Brooke Marshall

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 15 April 2024

Validity and effect — Validity of contract — Jurisdictional agreement — Jurisdiction

Chapter number and title: Chapter 6: Enforceability of asymmetric jurisdiction agreements before EU Member State courts The core question addressed by this Chapter is whether different variants of asymmetric clauses, before EU Member State courts, cohere with the individual ‘requirements’ for enforceability, imposed by the Brussels I Recast Regulation and 2007 Lugano Convention, one of which the French Cour de cassation has repeatedly found them to infringe. Those requirements include precision of content (as per Coreck Maritime GmbH v Handelsveem BV), form and factual consensus, and substantive validity. The relevance to the latter of norms of national law including mandatory rules and public policy, standard contract terms review, article 1304-2 of the French Code civil (clauses subject to a potestative condition) and L. 442-1 I—2 of the Code de commerce (subjecting a trading partner to a significant imbalance) are examined. A subsidiary question concerns the extent to which abuse of rights doctrines, with their source in EU law and national law, affect asymmetric clauses governed by the Recast or 2007 Lugano Convention.

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