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1 results

  • ASYMMETRIC JURISDICTION CLAUSES AND THE ANOMALY CREATED BY ARTICLE 31(2) OF THE BRUSSELS I RECAST REGULATION

  • Brooke Marshall
  • Journal:
    International & Comparative Law Quarterly / Volume 71 / Issue 2 / April 2022
    Published online by Cambridge University Press:
    21 April 2022, pp. 297-321
    Print publication:
    April 2022

  • The English Court of Appeal and German Bundesgerichtshof recently decided that Article 31(2) of the Brussels I Recast Regulation applies to asymmetric jurisdiction clauses. This article contends that while this conclusion is sound, separating the ‘clause’ into two ‘agreements’ to reach it is not. This disaggregation prevents a solution to the anomaly that Article 31(2) creates for asymmetric clauses, where a lender sues under its option and the borrower subsequently sues in the anchor court. This article proposes a solution, based on a uniform characterisation of the clause as a whole, which protects the lender's option and mitigates the risk of parallel proceedings.