Court of Appeal—asymmetric clauses are exclusive jurisdiction clauses for the purposes of Brussels I (recast) (Etihad Airways PJSC v Flöther)

This appeal raises for the first time in the English courts an important issue of principle concerning the scope and effect of Article 31(2) of Regulation (EU) 1215/2012, Brussels I (recast). The issue was whether Article 31(2) on its true interpretation as a matter of EU law, applies to an agreement conferring exclusive jurisdiction on the courts of an EU Member State, in circumstances where the exclusive choice of court agreement applies to proceedings initiated by one party but not (or not necessarily) to proceedings initiated by the other party. The Court of Appeal held that, such an asymmetric clause is an exclusive jurisdiction clause for the purposes of the regulation. While not deciding the point, the court also commented that the Hague Convention on Choice of Court Agreements (2005 Hague Convention) should probably be interpreted as not applying to asymmetric clauses.

This article was first published by Lexis®PSL on 04/01/2021

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