Asymmetric Choice of Court under Brussels Ibis

This thesis analyses the status and operation of asymmetric jurisdiction agreements under Brussels Ibis and compares it to the regulation of these clauses under international law, Chinese law, and US law. The thesis’ first chapter examines these clauses from a legal historic and systematic perspective. It argues that asymmetric clauses are compatible with the Brussels regime but that there are some difficulties with the lex fori prorogati and the provisions on lis pendens. In the second chapter, the thesis examines the treatment of asymmetric agreements by the courts of the EU Member States. Although most courts enforced them, a few courts faced difficulties in reviewing these clauses. Firstly, the regulatory framework provided by Brussels Ibis does not allow for a review of enforceability. Secondly, the scope of the reference to the lex fori prorogati is unclear. The third chapter argues that asymmetric choice of court is incompatible with the Hague Convention on Choice of Court Agreements but that it does provide a more comprehensive framework for reviewing the enforceability of exclusive jurisdiction clauses. The fourth and fifth chapters show that asymmetric choice of court agreements are generally enforced by courts in the PRC and the USA. In the USA, courts should not enforce choice of court if that would effectively deprive a party from its day in court. The thesis concludes with recommendations on the lex fori prorogati, lis pendens and a proposal for a limited review of enforceability of (asymmetric) choice of court agreements in the EU.