Asymmetric Choice of Court Clauses: the European Court of Justice provides important clarifications on their legal regime in the European area

Christian Camboulive (Partner), Jean-Sébastien Bazille (Partner), Sacha Willaume (Counsel), Vincent Carriou (Senior Associate)^[1]

Asymmetric or unilateral choice of court clauses are very common in international matters, particularly in the banking and financial sector. Such clauses provide that the contracting parties must submit any claim to the agreed jurisdiction, while granting one of them the option to bring proceedings before another court, usually located elsewhere.^[2]

The inherent imbalance inherent in these clauses and the resulting uncertainty have given rise to fluctuating case law. While these clauses initially seemed condemned in principle, their validity is now accepted, although case law, particularly that of the Cour de cassation, has not established their regime.

It is precisely to clarify the conditions for the validity of asymmetric clauses affecting the jurisdiction of courts of European Union member states (hereinafter the “EU”), that the Cour de cassation referred questions to the Court of Justice of the European Union (hereinafter the “ECJ“) in 2023.^[3]

The judgment handed down by the ECJ on 27 February 2025 confirms that there is no absolute prohibition of such clauses and provides important clarifications on their legal regime within the European area. A review of the wavering French case law (1) helps understand the scope of the solution adopted by the European judge (2).

1. A Gradual acceptance despite an unclear legal regime

As a preliminary reminder, in international matters, the regime of choice of court clauses is governed by several instruments:

• EU Regulation No. 1215/2012 (known as “Brussels I bis“), in force since 10 January 2015, particularly Article 25 concerning the designation of one or more courts of a Member State, which applies to exclusive or optional choice of court agreements;
• The Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (known as “Lugano II“)^[4], in force since 1^st January 2011, particularly Article 23, applicable when at least one party is a national of a State party to the Convention and the clause designates the courts of one or more States bound by that Convention, which also applies to exclusive or optional agreements;
• The Hague Choice of Court Agreements Convention 2005, which applies only to exclusive choice of court agreements and therefore not to the asymmetric clauses considered here; and
• General rules of private international law,^[5] particularly Article 48 of the French Code of Civil Procedure, when none of the above instruments apply, i.e. essentially when the clause designates a court outside the European area.

It is therefore primarily with reference to the provisions of the Brussels I (bis) Regulation and the Lugano II Convention, which are closely related, that French case law hesitated on how to treat asymmetric clauses.

The Cour de cassation initially expressed clear hostility towards these clauses. On 26 September 2012, in the Banque Rothschild case, it set aside the clause that reserved the bank “the right to act at the client’s domicile or before any other competent court failing the preceding choice of jurisdiction [Luxembourg]” on the grounds that it was potestative (i.e. subject to the will of one party).^[6]

As the basis for the solution adopted in the judgment was strongly criticised,^[7] these clauses were subsequently no longer assessed based on the concept of potestativité but rather in the light of autonomous objectives derived from the relevant instruments.

In the Danne Holding judgment of March 2015,^[8] the Cour de cassation criticised a Court of appeal for holding that a clause reserving a party the right to bring proceedings before “any other court” (other than the Swiss judge otherwise elected in the contract) was valid, without investigating whether the inherent imbalance of this clause was contrary to the objectives of predictability and legal certainty pursued by the Lugano II Convention.

Although the Cour de cassation continued to set aide such clauses, it implicitly left open certain conditions allowing their admission.

In the e-Bizcuss ruling of October 2015,^[9] the First Civil chamber recognised the validity of the clause stipulated in favour of the Irish court, reserving to Apple the right to bring proceedings before the courts “of the place where the reseller has its registered office or of any jurisdiction where damage is caused to Apple“. The Court clarified that the validity of such a clause was subject to the precise designation of the courts that may be seized as an alternative, thus satisfying a requirement of predictability.

Along the same lines, but this time to set aside asymmetric clauses, this Chamber later ruled in 2018 that an asymmetric clause must include “an objective element of identification of these other jurisdictions“, to satisfy the objectives of predictability and legal certainty pursued by the Lugano II Convention^[10] and the Brussels I bis Regulation.^[11]

While the Commercial chamber followed this development, it broke new ground by holding that the Brussels I bis Regulation required compliance with “the will of the parties […] regardless of whether the jurisdiction clause is binding on only one of the parties“, without reference to predictability and legal certainty.^[12] It upheld a clause reserving a party the right to act before “other competent courts [than the Italian courts] in accordance with the rules of legal procedure“.

Finally, mention should be made of a decision of the First Civil chamber dated 28 September 2022^[13] concerning the validity of a clause stipulated in favour of the courts of the Canton of Geneva. This clause reserved the right for Swiss bank UCB to act “before any other competent authority [than the Swiss court], Swiss law remaining applicable in all cases”

Despite the wording of the clause, which might have seemed unclear in light of the above criteria, the Cour de cassation nevertheless upheld the Court of appeal for having identified a reference to “the common law rules of jurisdiction under Swiss law“, to the extent that one may wonder if it amounted to a reversal from previous case law.^[14]

As we see, the Cour de cassation adopted a fluctuating position with respect to these clauses, resorting to various approaches to assess their validity, which likely justified referring the matter to the ECJ.

2. a newly-defined test for their admission

On 13 April 2023, the Cour de cassation referred several questions to the ECJ, regarding a clause conferring jurisdiction on the Court of Brescia (Italy), and reserving to an Italian party the right “to proceed against [its French counterparty] before another competent court in Italy or abroad“.^[15]

The Cour de cassation first asked about the meaning of the reference, in Article 25(1) of the Regulation Brussels I bis, to the concept of “substantive validity“:

“[…] where the other party maintains that the clause is unlawful because it is too imprecise and/or because it is one-sided, should that matter be determined in accordance with autonomous rules derived from Article 25(1) of the Brussels I bis Regulation and the objective of foreseeability and legal certainty pursued by that regulation, or should it be determined by applying the law of the Member State designated by the clause?”

On this point, the ECJ clarified that this concept refers only to the general grounds for contract nullity, notably defects in consent,^[16] and added that to be valid, a choice of court clause must necessarily “identify with sufficient precision the objective factors on the basis of which the parties have agreed to choose a court or the courts“.^[17]

Next, the Cour de cassation questioned the ECJ on the conditions for the validity of asymmetric clauses, in light of the autonomous criteria set out in Regulation Brussels I bis, namely predictability and legal certainty.

The ECJ answered that the validity of such asymmetric clause is subject to three conditions:

• The clause must designate with certainty courts of one or more States that are either EU member States or parties to the Lugano II Convention. The ECJ also clarified that the clause referring to “another competent court […] abroad” should be interpreted as also designating courts of States that are neither members of the EU or the Lugano II Convention and, accordingly, is contrary to the Brussels I bis Regulation;^[18]
• It must identify sufficiently precise objective elements allowing the court seized to determine whether it has jurisdiction, and
• It must not conflict with the provisions of the Regulation relating to the protection of weaker parties (consumer, employee, insured), nor override exclusive jurisdiction under the Brussels I bis.^[19]

CONCLUSION

This judgment will likely provide greater predictability for drafters of legal documents.

However, it did not resolve all difficulties that litigants may face. In particular, it will be interesting to observe how French courts will address the second criterion concerning the determination of “sufficiently precise objective elements“, a concept that may be open to interpretation.

Besides, it will be appropriate to examine the extent to which the autonomous criteria set out in Regulation Brussels I bis will influence the French courts’ assessment of the validity of clauses that fall outside the scope of this Regulation and the Lugano II Convention.

[1] The authors would also like to thank Hugo Deloche, intern with the London arbitration team, for his assistance.
[2] This article does not address the validity of hybrid clauses combining recourse to state courts and arbitration tribunals, which are subject to a specific legal regime.
[3] Cour de cassation, First Civil chamber, 13 April 2023, No. 22-12.965.
[4] The States party to this Convention are the Member States of the EU as well as Switzerland, Norway, and Iceland.
[5] It is established caselaw that the criteria for establishing the French courts’ jurisdiction in respect of international matters are, subject to adaptation, the same as for establishing their jurisdiction in a domestic context. See Cour de cassation, Civil chamber, 19 Oct. 1959, Pelassa; Cour de cassation, Civil chamber, 30 Oct. 1962, Scheffel.
[6] Cour de cassation, First Civil chamber, 26 Sept. 2012, No. 11-26022, D. 2012. 2876, note D. Martel; Rev. crit. DIP 2013, p. 256, note Bureau D.; JDI 2013, p. 175, note Brière C.; RDC 2013, p. 661, note Racine J.-B.; Ancel M.-E. et a., “Réflexions sur les clauses de juridiction asymétriques dans le contentieux international”, Banque et droit 2013, p. 3, n° 148.
[7] L. Usunier, “Valse hésitation à la Cour de cassation à propos du sort des clauses attributives de juridiction dissymétriques”, RTD Civ. 2015, p. 844; J.-B. Racine, “Les clauses d’élection de for asymétriques”, in Le droit à l’épreuve des siècles et des frontières, Mélanges en l’honneur du Professeur Bertrand Ancel, 2018, Lextenso, p. 1323; D. Sindres, “Nouvelles réflexions sur les clauses attributives de compétences optionnelles”, Rev. crit. DIP 2023, p. 335.
[8] Cour de cassation, First Civil chamber, 25 March 2015, No. 13-27.264.
[9] Cour de cassation, First Civil chamber, 7 Oct. 2015, No. 14-16.898.
[10] In the case of a clause conferring jurisdiction on the Swiss courts, yet reserving the contracting bank the right to bring proceedings before “any other competent court“. Cour de cassation, First Civil chamber, 7 Feb. 2018, No. 16-24.497, D. 2018. 1934, obs. L. d’Avout, Rev. Crit. DIP 2018, p. 630.
[11] In the case of a choice of court clause conferring jurisdiction on the Luxembourg courts, yet reserving the right for the bank “to derogate from this attribution of jurisdiction if it considers it appropriate“. Cour de cassation, First Civil chamber, 3 Oct. 2018, No. 17-21.309, D. 2019. 1016, obs. F. Jault-Seseke, and 1956, obs. E. Farnoux; Rev. crit. DIP 2018. 867; Gaz. Pal. 19 Feb. 2019, p. 74, note C. Kleiner.
[12] Cour de cassation, Commercial chamber, 11 May 2017, No. 15-18.758, Rev. crit. DIP 2017, note D. Bureau.
[13] Cour de cassation, First Civil chamber, 28 Sept. 2022, No. 21-13.686.
[14] See in particular on this point: Cour de cassation, First Civil chamber, 28 Sept. 2022, No. 21-13.686, D. 2023. 1812, obs. L. d’Avout; Rev. Crit DIP 2023.644, note B. Marshall.
[15] Cour de cassation, First Civil chamber, 13 April 2023, No. 22-12.965.
[16] Judgement of 27 February 2025, C-537/23, EU:C:2025:120, para. 36.
[17] Judgement of 27 February 2025, C-537/23, EU:C:2025:120, paras 44-53.
[18] Judgement of 27 February 2025, C-537/23, EU:C:2025:120, paras 59-62.
[19] Judgement of 27 February 2025, C-537/23, EU:C:2025:120, paras 54-67.