Jurisdiction Of The Agreement
“The parties shall submit to the exclusive jurisdiction of the courts of […] all their disputes arising out of or relating to this Agreement.” If there are other related agreements that are part of the transaction, consider whether you want all disputes to be settled in the same jurisdiction. Often, for economic reasons, the parties agree on conflicting jurisdiction clauses. This may lead to parallel proceedings and other disputes in order to determine which court has jurisdiction. If inevitably, make sure that the wording is clear and that the central treaties for the transaction refer disputes to the privileged jurisdiction.14 “Where a dispute referred to an arbitral tribunal under an arbitration agreement is brought before a national court, the latter must declare that it has no jurisdiction, unless the case has not yet been brought before the arbitral tribunal and the arbitration agreement is manifestly null and void or pending. I do not apply. In a case decided by the Court of Cassation, for example, the arbitration clause provided for in a contract other than that which one of the parties requested to be implemented and which contained a jurisdiction clause was clearly not considered applicable. Indeed, it is apparent from the facts of the case that the parties sought to distinguish between the two treaties – which had different objectives – by separating contrary dispute settlement clauses.7 In contrast, non-exclusive jurisdiction clauses identify a jurisdiction that the parties agree can hear their disputes, but agree that, in appropriate circumstances, the courts of other jurisdictions may have jurisdiction over a dispute. While a clause on the legislation in force determines which laws of the country apply to an international treaty, a jurisdiction clause defines the courts of the country that must hear a dispute. The inclusion of an attribute clause avoids preliminaries to decide where a case should be tried or the situation of parallel disputes in several jurisdictions. Member States are exclusively responsible for certain types of disputes, regardless of their place of residence (e.g. B real estate rights, certain company law issues, etc.). Where Member States have such exclusive jurisdiction, this shall prevail over anything otherwise agreed by the parties in a contractual clause, and the designated court shall declare that it has no jurisdiction where claims are invoked before them in breach. The choice of non-exclusive jurisdiction reserves to him in principle that disputes are judged before the courts of a given court, without prejudice to the right of either party to bring a dispute before the courts of another jurisdiction, if necessary.
Such clauses achieve certainty, if you know that disputes can be negotiated in a particular jurisdiction that you find attractive, but if another jurisdiction is needed, it is available. Although they offer greater flexibility, there is a risk of parallel proceedings, in particular when the parties or one of them are domiciled outside the EU.5 It should be recalled that, in accordance with Article 48 of the aforementioned French Code of Civil Procedure and according to consolidated case-law, the jurisdiction clause, which must be very clearly stated in the contractual document signed by the defendant, that they are necessarily informed and accepted by them at the time of the conclusion of the contract, in order to be applicable to it4. . . .