Unilateral jurisdiction clauses (frequently referred to as
'option clauses', 'hybrid clauses' or
'asymmetrical clauses') are dispute resolution clauses
granting one party the possibility to choose from several
jurisdictional options while the other party is bound to bring an
action or claim before a single jurisdiction. Such clauses are
widely used and normally found in contracts where there is an
imbalance of negotiating power between the parties, with one party
in a more favourable position and able to 'cherry-pick' the
preferred jurisdiction. Asymmetrical clauses are generally
considered valid, although in a few jurisdictions their validity
has been questioned on the grounds that they lack mutuality or are
The issue was recently considered by the Supreme
Court1 in a matter arising out of a contract in
which the jurisdiction clause provided that one party was bound to
refer contractual disputes to the English courts while the other
had the liberty to bring an action "before Italian courts or
any other judge having jurisdiction pursuant to the international
The Supreme Court had no hesitation in upholding the validity of
the clause, pointing out that the parties' asymmetrical
position with respect to jurisdiction was consistent with Article
23 of EU Regulation 44/2001, which provides that a choice of
jurisdiction will be exclusive "unless the parties have agreed
otherwise", thus admitting that the parties may opt for
non-exclusive jurisdiction clauses.
The same position was recently expressed by the Milan Court of
Appeal2 in a case where the contract entered into
by the parties contained a law and jurisdiction clause subjecting
the contract to the laws of the state of Washington and specifying
that while the Italian company consented to the exclusive
jurisdiction and venue of the courts in Washington (with an
additional provision that the "company waives all defenses of
lack of personal jurisdiction and forum
non-conveniens"), the other party - Microsoft - was free
to make use of the Italian courts.
The Milan Court of Appeal noted that such clauses have long
existed and been permitted in the Italian legal system (the court
found an example of an asymmetrical clause in the bilateral
convention of June 3 1930 between Italy and France). Furthermore,
the possibility for the parties to agree on such a hybrid clause
was permitted before the adoption of EU Regulation 44/2001 by
Article 17 of the Brussels Convention 1968, which states that:
"if an agreement conferring jurisdiction was concluded
for the benefit of only one of the parties, that party shall retain
the right to bring proceedings in any other court which has
jurisdiction by virtue of this Convention."
The Milan court added that the Italian defendant could not
object to the jurisdiction of its 'natural' judge, and that
the alleged imbalance existing between the parties had not taken
place in the case at hand, since Microsoft had preferred to make
use of Italian courts instead of filing the lawsuit in
It is interesting to compare the Supreme Court's conclusions
with the reasoning behind a recent decision of the French Court of
Cassation,3 which held that a unilateral hybrid
jurisdiction clause was null and void on the ground that it was
potestative and contrary to the purpose of EU Regulation 44/2001.
The Paris Court of Appeal had previously held that the jurisdiction
clause was null and void on the ground that although the regulation
permits a clause giving one party the option to choose between
jurisdictions, such a clause cannot give one party the absolute
"discretion to select whatever jurisdiction it wishes".
The Court of Cassation confirmed the decision on the ground that
the clause was "potestative in nature".
An obligation that is conditional upon a purely potestative
condition - that is, entirely within the power of only one party of
the contract - is deemed null and void under French law. The same
principle applies in Italian law (pursuant to Article 1355 of the
Civil Code), but the Italian Supreme Court found nothing wrong with
the possibility for one of the contracting parties to choose among
various jurisdictions, despite the fact that such a choice depends
on the mere will of that party.
1. Case 5705, April 11 2012, Grinka in
liquidazione v Intesa San Paolo, Simest, HSBC.
2. September 22 2011, Sportal Italia v
3. First Chamber, September 26 2012, Case
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