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7 Interpretation, enforceability, and effects of asymmetric jurisdiction clauses under English law

From: Asymmetric Jurisdiction Clauses

Brooke Marshall

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 27 February 2024

Subject(s):
Enforcement of foreign judgments — Foreign judgments obtained in breach of jurisdiction agreement — Overcoming foreign judgments obtained in breach of contract — Jurisdictional agreement — Jurisdiction

This Chapter examines the principles of English law applicable to asymmetric jurisdiction clauses that, until Brexit, applied in a limited range of situations. Illustrating how asymmetric clauses are likely to be treated going forward, the Chapter analyses the English law relevant to their interpretation, enforceability and effects, along with relief for their breach. The extent to which the Braganza-Socimer implied term and the Unfair Contract Terms Act 1977 are relevant to enforceability is examined, along with the relationship between severability and consideration. Analysis of effects encompasses the exclusive/non-exclusive dichotomy and extends to the ancillary procedural clauses generally accompanying asymmetric clauses: forum non conveniens or FNC waivers and concurrent proceedings provisions. The likelihood of an English court issuing an antisuit injunction or staying its proceedings on grounds of vexation or oppression and forum non conveniens, via case management, or on the basis that the proceedings before the court are an abuse of its processes is considered.

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