Asymmetric jurisdiction clauses and Brussels I Recast

So-called "asymmetric" jurisdiction clauses are common in international financial markets. This type of clause occurs where X (commonly a bank) and Y (commonly a borrower) agreed that Y may sue X in the courts of one particular jurisdiction only, but that X may bring proceedings against Y in a range of courts.

Commerzbank v Liquimar Tankers Management Inc [2017] EWHC 161 (Comm) considers the law as between Member States of the EU. Adopting, for clarity, the terminology above, Y sued X not in the jurisdiction solely designated by the clause but in that of another Member State. Until this case there was no EU or English case law relating to this point under the new Brussels I Recast (the regulations relating to the jurisdiction of the various courts of the Member States).

The courts chosen by Y became first seised of the dispute. However, since they were not the courts designated in the contract, did they have to stay those proceedings? The answer turned on whether the asymmetric clause conferred exclusive jurisdiction on the courts of an EU Member State in respect of Y's claims against X, even if it did not do so in respect of claims by X against Y.

The debtors pointed to a general policy that the court first seised should determine its own jurisdiction to avoid conflicting judgments. This has some force but, in the new Brussels I Recast, the EU appears to have chosen to carve out an exception where the proceedings in the first seised courts are in breach of an exclusive jurisdiction provision.

In this case, the bank extended loans for the building or acquisition of a number of ships. The jurisdiction clause required the debtors to sue the bank in England, but allowed the bank to sue in any competent jurisdiction.

When disputes arose, the debtors nonetheless commenced proceedings in Greece. The bank then commenced proceedings in the English court seeking the amounts outstanding under the loans. The debtors asked the English court to stay the English proceedings until after the Greek cases had been heard, on the basis that the Greek courts were first seised and the asymmetric clause was not an exclusive jurisdiction clause. It was common ground that the claims in the Greek and English proceedings involved the same causes of action.

Mr Justice Cranston dismissed the debtors' application. In his view, after considering the EU legislation and the Hague Convention on choice of court agreements in detail, the jurisdiction clause in the loans conferred exclusive jurisdiction on the courts of a Member State within the meaning of Article 31(2) of the Brussels I Recast (EU Regulation 1215/2012).

The debtors pointed to a general policy that the court first seised should determine its own jurisdiction to avoid conflicting judgments. This has some force but, in the new Brussels I Recast, the EU appears to have chosen to carve out an exception where the proceedings in the first seised courts are in breach of an exclusive jurisdiction provision.

It is true to say that an asymmetric clause does not designate a single forum for all disputes under the contract, but as the Judge pointed out:

…considered as a whole, they are agreements conferring exclusive jurisdiction on the courts of an EU member state, namely, England. That this applies in respect of a claim by the defendants alone does not detract from this effect.

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