On 27 February 2025, the Court of Justice of the European Union (CJEU) delivered a judgment on the conditions for the validity of an asymmetric jurisdiction clause in the context of the Brussels Ibis Regulation.
A jurisdiction clause is said to be asymmetric, or unilateral, if it confers jurisdiction on the courts of one State while allowing one of the parties to choose the courts of one or more other States.
In this case, an Italian company and a French company are in dispute as to the jurisdiction of the French courts to hear a third-party claim brought by the French company against the Italian company in the context of an action for liability and damages brought against the two companies. More specifically, the dispute concerns the asymmetric jurisdiction clause contained in the contract, which provided that any dispute arising out of or in connection with the contract would be subject to the jurisdiction of the Court of Brescia (Italy), with the French company reserving the right to bring proceedings against the Italian company before another competent court in Italy or elsewhere.
The first question put to the CJEU is whether the validity of a jurisdiction clause should be assessed in the light of (i) the criteria relating to the grounds for substantive invalidity laid down by the law of the Member State designated by the clause or (ii) the autonomous criteria contained in the Brussels Ibis Regulation.
The CJEU considers that substantive nullities regarding the general grounds for nullity of a contract (in particular, lack of consent and incapacity) are governed by the law of the Member State whose courts are designated.
On the other hand, it concludes that the specific conditions of validity of choice-of-court agreements must be examined in the light of the Brussels bis Regulation.
The second question therefore concerns the examination of the validity of the asymmetric jurisdiction clause.
The CJEU points out that, in order to be valid, an asymmetric jurisdiction clause must, in particular, identify with sufficient precision the objective elements on which the parties have agreed in order to designate the court or courts to which they intend to submit their disputes, whether arising or not. In the present case, the designation of the competent court in the jurisdiction clause, which refers to a "another competent court ... elsewhere", lacks precision and does not meet the objectives of predictability, transparency and legal certainty pursued by the Brussels Ibis Regulation.
Then, the validity of a jurisdiction clause in relation to its allegedly disproportionate nature is assessed according to the Brussels Ibis Regulation, which only recognises the disproportionate nature of the jurisdiction clause for insurance, consumer and employment contracts. In the present case, as the contract was not an insurance, consumer or employment contract, this criterion did not need to be met.
Finally, the CJEU concludes that a choice of court agreement under which one of the parties to the agreement may bring proceedings only before the court designated by it, while allowing the other party to bring proceedings before any other competent court in addition to that court, is valid provided that:
- first, it designates the courts of one or more States which are either Members of the Union or parties to the Lugano II Convention; and
- second, it identifies objective factors which are sufficiently precise to enable the court seised to ascertain whether it has jurisdiction; and
- thirdly, it is not disproportionate when included in an insurance, consumer or employment contract and does not derogate from any exclusive jurisdiction provided for in the Brussels Ibis Regulation (for example, in relation to (i) rights in rem in immovable property, (ii) the validity, nullity or dissolution of companies or firms, (iii) the validity of entries in public registers, (iv) the registration or validity of patents, trademarks and designs, (v) the enforcement of judgments).
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