4 See z.B Briggs, A `The Subtle Variety of Jurisdiction Agreements` (2012) LMCLQ 364 , 376. See Joseph, D, judicial and arbitration agreements and their application (3rd Edn, Sweet and Maxwell 2015) [4.03]: arguing that exclusive and non-exclusive jurisdictional agreements and the distinction between them are essential for the application of the redesign of BIR, Lugano II and The Hague. At Commerzbank, the High Court of Justice ruled that the asymmetrical judicial agreements were valid after the brussels redesign I. [84] Commerzbank agreed to finance the construction of ships by Liquimar. The loan contract contained an asymmetrical jurisdiction clause which granted the bank the prerogative to initiate proceedings before a competent court, while non-option holders were limited to England. There were two parallel procedures, one in England and the other in Greece. Liquimar requested that the English procedure be adopted, arguing that the asymmetric agreements are not compatible with Article 25 to trigger the reverse rule of Article 31, paragraph 2, of the Brussels I overhaul. He argued that Article 25 had obliged the parties to designate the courts of a Member State in order to enable the identification of the law applicable to material validity and to ensure the security of the place where a non-beneficiary can expect legal action. In addition, Liquimar invoked the French Rothschild case. Cranston J did not follow this argument: Article 25 was intended to resolve this problem by regulating material validity and formal validity. It now requires that the choice of forum agreements be based on genuine consent and that it meet certain formal requirements.

If French law permits, disputes related to this treaty are referred to the Luxembourg courts. However, the Bank reserves the right to revoke this jurisdiction if it deems it appropriate. Continental Bank is the 1994 case in English on asymmetric jurisdictional agreements. [78] This was one of the first cases in which the question of the validity of asymmetric judicial agreements in England was raised in the context of the Brussels Convention (at the time). [79] A loan agreement between parties from England and Greece included a court and court agreement which states that “[d] the borrower […] it is irrevocably subject to the jurisdiction of the English courts […], but the bank reserves the right to act, under this agreement, in the courts of another country which is entitled or competent.” Borrowers are insolvent and have initiated legal proceedings in Greece. In the hope of curbing this procedure, the bank has applied for an action in the English courts. The question was whether the jurisdiction clause was exclusive to borrowers. The Court of Appeal found that the clause was not exclusive to both the bank and only to borrowers.

[81] Continental Bank received its referral order and the borrowers did not question the validity of the asymmetric agreement. Thus, the Court of Appeal implicitly assumed that asymmetric clauses against the non-option holder were valid and applicable. At present, the Rothschild doctrine therefore requires that asymmetric jurisdictional agreements contain either an objective element – such as the place where damage has been caused (eBizzcus) – or that they explicitly refer to a rule of jurisdiction applicable in an EU Member State. [75] [10] An example of an exclusive jurisdiction clause: “Any claim arising from or in connection with this agreement is subject to the internal material laws of [X] and the parties are subject to the exclusive jurisdiction of the courts [X]”; see also Briggs (n 7) by. 4.09. It appears that the Court of Cassation applied national contract law to determine what is acceptable under the Brussels I regulation. This approach has been the subject of strong criticism in practice, as has it been by legal experts.