Validity of Asymmetrical Jurisdiction Clauses

Asymmetrical jurisdiction clauses—also known as unilateral or one-sided jurisdiction clauses—are frequently used in international commercial contracts. These clauses typically bind one party to a specific court while granting the other party greater flexibility to choose among several forums for dispute resolution. While common in banking and finance agreements, their compatibility with EU law has long been debated. Recent clarification has now come from the Court of Justice of the European Union (ECJ) in its judgment in Case C‑537/23, Società Italiana Lastre SpA (SIL) v Agora SARL, delivered in February 2025.

Under the Brussels Ia Regulation (Regulation (EU) No 1215/2012), parties are allowed to agree on a court or courts to have jurisdiction over their disputes. However, the Regulation also requires such agreements to be clear and predictable, and must not undermine legal certainty—core principles of the EU’s private international law framework.

In the SIL v Agora decision, the ECJ confirmed for the first time that asymmetrical jurisdiction clauses are not per se invalid under EU law. Instead, their validity must be assessed based on specific criteria. The Court emphasized that such clauses must (1) designate courts within the EU or another Brussels/Lugano regime country, (2) contain objective and sufficiently precise terms, and (3) respect the boundaries of the Regulation, particularly in relation to exclusive jurisdiction rules and consumer or employment protection provisions.

Importantly, the Court also held that if an asymmetrical clause allows jurisdiction in non-EU or non-Lugano countries without clear limits, the clause may be deemed entirely invalid, as this would violate the principle of foreseeability. Therefore, clauses must be drafted with care to ensure they remain within the jurisdictional framework accepted by the EU.

The practical implications are significant. The ruling confirms the permissibility of asymmetrical clauses in commercial contexts, but underscores the importance of clarity, mutual recognition of jurisdiction, and territorial limits. Businesses using such clauses should review them closely to ensure they comply with EU standards. In particular, vague formulations like “any competent court” should be avoided unless they clearly refer to a defined jurisdictional regime.

While the ECJ’s decision brings welcome clarity and a harmonized approach across the EU, parties must continue to take local interpretations and enforcement practices into account. The decision strengthens legal certainty in cross-border contracting, but only where jurisdiction clauses are precisely and carefully drafted.