Asymmetric Jurisdiction Clauses

In international commercial contracts, one of the most sensitive issues concerns the choice of the court with jurisdiction over potential disputes. This is addressed through specific contractual clauses, which may be symmetric or asymmetric, granting one party only a greater degree of flexibility in forum selection.

Forum selection clauses are often referred to as “midnight clauses” — provisions negotiated and drafted at midnight, at the end of long and exhausting negotiations, to which the parties typically pay the least attention. Yet they can have significant consequences and substantially affect the respective bargaining power of the parties should a dispute arise.

Asymmetric jurisdiction clauses are often found in standard terms and conditions or in pre-drafted contracts. Their purpose is to regulate the contractual forum differently for each party. For instance, a clause may derogate from the ordinary rules of territorial jurisdiction in favour of only one party, giving that party the option to bring proceedings either before the court designated in the contract or before the court that would otherwise have jurisdiction under standard rules; the other party, by contrast, is bound to bring any claim exclusively before the contractually designated court.

Such clauses afford one party greater flexibility in forum selection. Their validity, however, has been the subject of intense debate both at European level and within national legal systems, with fluctuating case law that has created uncertainty for practitioners. Against this backdrop, the Court of Justice of the European Union delivered its judgment of 27 February 2025 in Case C-537/23, Società Italiana Lastre SpA (SIL) v. Agora SARL, which — largely in line with the established position of the Italian Court of Cassation — provided fundamental guidance on the interpretation of Article 25 of the Brussels I-bis Regulation (EU Regulation No. 1215/2012).

Preliminary Questions Referred to the CJEU

The French Cour de Cassation, hearing a dispute between a French and an Italian company, referred three preliminary questions to the CJEU, asking:

1. whether the lack of precision and the imbalance of a jurisdiction clause should be assessed under autonomous criteria derived from Article 25 of Regulation 1215/2012, or under national law on substantive validity;
2. whether an asymmetric clause is inherently valid under the Regulation;
3. which national law governs substantive validity where the clause designates courts of more than one Member State.

Principles Established by the Court of Justice

The Court of Justice answered by affirming two fundamental principles:

1. Objections concerning the imprecision or imbalance of a jurisdiction agreement must be examined under autonomous criteria derived from Article 25 of the Brussels I-bis Regulation, as interpreted by the Court, and not under national rules on substantive invalidity. National law is relevant only for the traditional grounds of contractual invalidity: mistake, fraud, duress, and incapacity.
2. An asymmetric jurisdiction clause is valid, provided three conditions are met:

• The court or courts designated must belong to one or more EU Member States (or parties to the Lugano II Convention);
• the clause must identify sufficiently precise objective elements enabling the court seised to verify its own jurisdiction;
• it must not conflict with Articles 15, 19 or 23 of the Regulation, nor derogate from exclusive jurisdiction under Article 24.

The Court thus upheld the principle of party autonomy, clarifying that the imbalanced nature of an agreement does not in itself render it unlawful, provided the parties freely consented to it.

Scope of Application of the Brussels I-bis Regulation

Regulation 1215/2012 applies to disputes with an international element.

It should be recalled that the CJEU (in the Inkreal case, judgment of 8 February 2024, Case C-566/2022) held that the mere inclusion of a jurisdiction clause designating a court of another Member State is sufficient to establish the international element required for the Regulation to apply — even in purely domestic disputes where all parties share the same nationality. While this approach reinforces party autonomy, it risks, as legal scholars have critically noted, effectively rendering the international element requirement meaningless, effectively handing parties de facto control over when the Regulation applies, with potential implications for the plurality of national legal systems.

Best Practices for Drafting Asymmetric Jurisdiction Clauses

In light of this regulatory and case law framework, a number of practical recommendations can be formulated for the drafting of asymmetric jurisdiction clauses.

• First and foremost, precision is essential: the designated court or courts must be identified clearly and unambiguously, with reference to the objective elements that enable their identification.
• Second, an asymmetric clause is valid only insofar as it does not conflict with the protective provisions for weaker parties — insureds, consumers, and employees — under Articles 15, 19 and 23 of the Regulation, and does not derogate from exclusive jurisdiction. In B2B relationships, imbalance is generally permissible; in contracts involving weaker parties, the utmost caution is required.
• Moreover, where the clause designates courts in more than one Member State, these should be clearly identified.

Finally, compliance with the formal requirements of Article 25 of the Regulation remains essential: the clause must be concluded in writing or evidenced in writing, in a form consistent with established practices between the parties or, in international trade, with the usages of the relevant sector.