Non-exclusive jurisdiction clause

"All the parties irrevocably agree that the courts of [England] are to have non-exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Agreement and that accordingly any proceedings arising out of or in connection with this Agreement may be brought in such courts."

In the Brussels Regime States, such a clause has the effect of adding the specified court(s) as an alternative to the court(s) which would otherwise have jurisdiction. See When will a court take jurisdiction?

• When using such a clause in favour of an EU Member State court, be aware that the Brussels I Recast (which applies before the EU Member State courts in relation to proceedings commenced on or after 10 January 2015) introduced a rule which states that the chosen court shall have jurisdiction unless the clause is null and void as to its substantive validity under the law of the chosen EU Member State. Note that determining the applicable law for such purposes includes the application of the chosen EU Member State’s conflict of laws rules (Recital 20). In this context, that means the court’s own, national conflict rules as to the law applicable to a jurisdiction clause - neither the Rome Convention nor the Rome I Regulation apply to jurisdiction clauses (nor arbitration clauses) as such are excluded from their scope.
• When using a jurisdiction clause in favour of an EU Member State court, it may therefore be advisable to consider whether and how it might be affected by this rule (clauses in favour of the Lugano States remain unaffected by this rule). From the perspective of a clause in favour of the English courts, in the usual circumstances where English law is also the governing law of the main contract, this is unlikely to cause a problem in most transactional or financing contracts between commercial entities as English law would apply to the clause and it generally upholds the parties’ bargain in this area. As with any contract governed by English law, however, in more specialised areas (e.g. consumer contracts) where some general regulation of the parties’ bargaining power may exist parties may wish to consider how, if at all, that may impact on the matter.

Such a clause is likely to have little influence on whether or not the court of a non-Brussels Regime State takes jurisdiction, but will amount to a submission to the jurisdiction of the specified court when it comes to enforcing a judgment of that court.

The clause may be supplemented by a Submission and Waiver (which is usual in US clauses).

In respect of choices in favour of the English court, please click here to read our analysis of the potential impact of Brexit on the effect to be given to such a clause in England.

See Which jurisdiction clause? for guidance as to which clause to use in which circumstances.