Hostname: page-component-7857688df4-4hfp6 Total loading time: 0 Render date: 2025-11-13T23:27:50.522Z Has data issue: false hasContentIssue false
  • English
  • Français

Consent to Jurisdiction Under the Brussels I Regulation and the 2005 Choice of Court Convention

Published online by Cambridge University Press:  05 November 2025

Marta Pertegás Sender Open the ORCID record for Marta Pertegás Sender [Opens in a new window]
Marta Pertegás Sender*
Affiliation:
Maastricht University, Maastricht, The Netherlands
*
Email: m.pertegassender@maastrichtuniversity.nl

Abstract

For EU jurisdictions, Regulation (EU) No 1215/2012 on jurisdiction and recognition and enforcement of judgments (the Brussels I Regulation) and the 2005 Hague Choice of Court Convention (the 2005 Choice of Court Convention) are the pivotal instruments to assess “consent to jurisdiction” in a choice of court agreement. This Article examines the symmetries in both instruments. The relevant rules combine inferred consent with a residual reference to the law of the chosen court, as opposed to providing a uniform substantive standard on the notion of “consent” to jurisdiction. The practical operation of this hybrid solution is examined by reference to the relevant case law of CJEU and selected domestic courts. The Article then considers specific matters where consistency between the two regimes is uncertain. In conclusion, while alignment on consent to jurisdiction under the Brussels I Regulation and the 2005 Choice of Court Convention is desirable, it is expected that autonomous standards on consent to jurisdiction will be consolidated within the respective scopes of application of the instruments under review.

Keywords

Consentjurisdictionchoice of court agreementEU lawHague Conference on Private International Law

Information

Type
Article
Information
German Law Journal , Volume 26 , Special Issue 5: (Informed) Consent to Dispute Resolution Agreements , June 2025 , pp. 889 - 903
Creative Commons
Creative Common License - CCCreative Common License - BY
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (https://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
Copyright
© The Author(s), 2025. Published by Cambridge University Press on behalf of the German Law Journal

A. Introduction

In the Member States of the European Union (EU), Regulation (EU) No 1215/2012 on jurisdiction and recognition and enforcement of judgments, (“the Brussels I Regulation” or “the Regulation”), and the Convention of 30 June 2005 on Choice of Court Agreements (“the 2005 Choice of Court Convention” or “the Convention”), are the pivotal instruments to assess “consent” to a choice of court agreement.Footnote 1

This Article examines the symmetries in assessing consent in the referred instruments. I refer to their common approach as a hybrid solution because relevant rules in both instruments attach consequences to the autonomous requirements relating to the agreement’s formal validity. Both Article 25 of the Brussels I Regulation and Article 3 of the Choice of Court Convention lay down the formal conditions that choice of court agreements must meet and thereby determine whether compliance with such conditions amounts to an agreement.Footnote 2 However, the fulfillment of the formal requirements is not, in itself, sufficient to conclude that there is consent to the agreement. This is because both instruments enable the application of the law of the chosen court for any issues relating to substantive shortcomings, such as fraud, mistake, duress or representation. In other words, both instruments use a residual conflictual solution, which relies on the applicable domestic law, instead of providing a uniform standard on consent for jurisdictional purposes. By reference to the relevant case law of the European Court of Justice (CJEU), principally pertaining to the application of the Regulation, this Article considers the similarities of the two schemes that jointly form the core of the EU legal framework on choice of court agreements. Reflecting on their similarities but also on certain differences, the last Section of this Article examines whether there is merit in a uniform notion of consent for jurisdictional purposes in EU private international law (PIL).

B. Consent (to Jurisdiction) – A Working Concept

For our comparative and interdisciplinary purposes, consent to jurisdiction strikes me as an adequate qualifier for the question under review. Looking across the Atlantic, the articles in this issue presented by H. Buxbaum and J. CoyleFootnote 3 make clear that consent to jurisdiction is a substantial component of the current personal jurisdiction analysis in the United States (U.S.), especially after the U.S. Supreme Court upheld consent-based jurisdiction in Mallory.Footnote 4 As was previously addressed by other contributors, Mallory dealt with Pennsylvania’s “consent-by-registration” statute, which allows an out-of-state corporation to be sued in that state for any cause of action, general personal jurisdiction. While this is an interesting development, it is beyond the scope of this Article, which focuses on choice of court agreements entered explicitly by the parties to the dispute, and does not cover cases relating to general jurisdiction.Footnote 5

From a contractual law perspective, consent is a pivotal legal concept understood as the meeting of offer and acceptance or, in other words, a prerequisite that agreement between the parties exist.Footnote 6

It may therefore strike one as particularly odd that a word search of “consent” yields negative results in both instruments under review. Not a single time is the term consent used in the texts of either the 2005 Choice of Court Convention or the Brussels I Regulation.Footnote 7 This begs the question whether the assessment of a choice of court agreement in the context of these instruments indeed requires consent, or just agreement, on the choice of a court by the parties, provided there is, for jurisdictional purposes, a legally relevant difference between the notions of consent and agreement. In turn, this is linked to the degree of procedural autonomy that consent—or agreement—possesses for forum selection purposes, specifically, or for dispute resolution clauses more generally. In other words, how autonomous is consent to a choice of court, irrespective of the applicable contractual framework? I will return to this central question after a brief description of the relevant legal instruments—the 2005 Choice of Court Convention and the Brussels I Regulation—under review.

C. Framing a Comparison: Two Distinct Components of the EU International Procedural Framework

In this Article, I refer to two distinct instruments that shape the EU legal framework for international litigation in civil and commercial matters. The first one, the Brussels I Regulation, hardly requires any introduction. Together with its predecessors—the Brussels Convention and the prior Brussels I Regulation—this Regulation forms the cornerstone of EU PIL. For our purposes, the section of the Regulation headed “Prorogation of Jurisdiction” is of particular relevance, as its provisions deal with the parties’ autonomy on forum selection. Article 25 refers to choice of court agreements while Article 26 refers to the choice by tacit submission, which implies that the proceedings have commenced.Footnote 8

The second instrument is the 2005 Choice of Court Convention, concluded under the auspices of the Hague Conference on Private International Law (HCCH). While this international treaty is open for accession by States in any part of the world,Footnote 9 I share the editors’ view that the Convention’s approach to consent may be examined by comparison to the corresponding rules of the Brussels I Regulation.Footnote 10 I see two main reasons for this joint analysis: First, the 2005 Choice of Court Convention is part of the uniform rules on international procedural law of the EU. Indeed, since its date of entry into force on October 1st, 2015, the Convention is in force and applicable in all EU Member States. Accordingly, for the past decade, courts throughout the EU have principally resorted to either the Regulation or the Convention to resolve most international civil and commercial disputes involving a choice of court agreement. Second, as the further analysis will demonstrate, there is a certain parallelism in the treatment of forum selection clauses by the two instruments. This is not only the result of a dialogue between “Brussels” and “The Hague” in the drafting processes leading to the current Regulation between 2005, the Convention’s conclusion, and 2012, the adoption of the currently applicable Brussels I Regulation. Besides the coordination in the drafting phase, there is the wish for alignment in their application in the context of EU law.Footnote 11 Conventions, like the 2005 Choice of Court Convention, that are concluded by the EU are part of EU law on the basis of Article 216(2) of the Treaty on the Functioning of the European Union (TFEU).Footnote 12 The Brussels I Regulation is secondary EU law. As part of the same acquis, EU courts, including the CJEU, adopt an aligned interpretation and application of these two instruments, unless the wording of the relevant provisions prevents such alignment. The further analysis in this Section shows that, for the enforcement of choice of court agreements in jurisdictions where both the Regulation and the Convention apply, there is sufficient room for alignment, notwithstanding some asymmetries.

D. With Symmetries…

There is extensive literature on the legal treatment of choice of court agreements in the two instruments under review.Footnote 13 For our current purposes, I focus on the notion of consent and note three essential points of convergence in the treatment of forum selection clauses. These points suggest an emerging common core of autonomous interpretation of consent in the legal treatment of jurisdiction agreements in the EU.

I. Choice of Court as Reflection of the Parties’ Autonomy to Determine Jurisdiction

A first common characterising feature is the positioning of jurisdiction agreements in relation to the general operation of the rules on international jurisdiction for civil and commercial matters. Using different drafting techniques, both instruments draw a clear line between restrictive and protective rules that ban or limit the effects of choice of court agreements for certain cases, and permissive rules that seek to give full effect to the parties’ choice of court in other circumstances.

In the Brussels I Regulation, party autonomy to determine the courts having jurisdiction is excluded for disputes falling under Article 24—the exclusive jurisdiction rules—with regard to disputes about rights in rem in immovable property or about the validity of patent rights.Footnote 14 There are also important limitations with regard to choice of court agreements in the context of insurance contracts, most consumer contracts, and individual employment contracts. In stark contrast with the prevailing views in the U.S., the relevant articles of the Regulation—Articles 16, 19 and 23—implement a protective policy by presuming that the weaker party—either the insured or policyholder, the consumer and the employee—require jurisdictional advantages.Footnote 15 Such advantages include a severely reduced effect of a choice of court agreement vis-à-vis any of those weaker parties, who are only bound by agreements entered into after the dispute arose or, if entered before then, by non-exclusive agreements that broaden their jurisdictional options.Footnote 16

The 2005 Choice of Court Convention, in turn, does not apply to most of the abovementioned cases by operation of the “exclusions from scope” provision (Article 2), with the notable exception of insurance contracts.Footnote 17

Both instruments thus share a common applicability requirement that relates to the parties’ presumed bargaining power. However, this similarity is only partial. Insurance contracts are not excluded from the Convention’s scope of application, meaning that choice of court agreements in insurance contracts can deploy full effects against presumed weaker parties—insurance policy holders for instance—under the Convention, but not under the Regulation.Footnote 18 The EU addressed this potential misalignment when it approved the 2005 Choice of Court Convention: By means of a declaration, the EU excluded the Convention’s operation for the same type of insurance contracts that are subject to protective jurisdiction under the Regulation.Footnote 19

Furthermore, forum selection clauses in certain sectors of international trade are not governed by the two legal instruments under review. In particular, the applicability of the 2005 Choice of Court Convention is limited by a long list of excluded matters set out in Article 2 of the Convention.Footnote 20 On the one hand, if we refer, for instance, to the international shipping legal sector, the most important subject matter exclusions for the 2005 Choice of Court Convention are disputes relating to the carriage of passengers and goods; and disputes relating to marine pollution, limitation of liability for maritime claims, general average, and emergency towage and salvage. On the other hand, such cases fall under the substantive scope of the Regulation.Footnote 21 It follows from this divergent scope of application that, where matters excluded from the Convention are brought to EU courts and the case is outside the temporal or geographic scope of application of the Brussels I Regulation, jurisdiction will be ruled by the domestic jurisdiction rules of the local EU Member State.

II. Hybrid Ascertainment of Consent

This Section examines whether there is alignment between the 2005 Choice of Court Convention and the Brussels I Regulation regarding the parties’ consent to the agreement. The common starting point, as set out above, is that these legal instruments do not require consent, but refer to a jurisdictional agreement instead. This distinction may be subtle, yet it is not without relevance, for example, in the context of new forms of contracting using current technological developments. For example, the literature on smart contracts persuasively demonstrates that legal terms like will, consent, and intention more adequately reflect actions or traits that are characteristic for persons, be they natural or legal persons.Footnote 22 This begs the question: Since smart contracts, or rather the code that leads to automated performance, are not persons, is a requirement of consent an excessive threshold to impose? This observation may be extended to a wider range of digital transactions where choice of forum clauses are typically inserted in online general conditions, terms of use, or the like, and are unilaterally prescribed by one party.Footnote 23 Therefore, in order to assess the effects of such a clause, the relevant question is whether there is proper agreement on where to litigate. For both instruments, the answer includes a two-step approach to the question of agreement: (i) the fulfilment of the instrument’s formal validity requirements amounts to a presumption of agreement, and (ii) such presumption can be challenged by reference to the agreement’s substantial validity, which will be assessed by reference to the law of the chosen court.

1. Inferred Consent from the Agreement’s Formal Validity

Both the Brussels I Regulation and the 2005 Choice of Court Convention use similar language about the requirements for the agreement’s formal validity for contracts in writing or using a functional equivalent.Footnote 24

With regard to the Regulation, the CJEU has confirmed that the agreement between the parties can be inferred from the fact that the exhaustive requirements set out by the Regulation have been complied with.Footnote 25 I use the term exhaustive to make clear that the formal requirements set out by the Regulation are sufficient, without possible recourse to domestic laws. These requirements are intended to ensure that consensus about the selected court is established and to provide proof of such consensus.Footnote 26 Specifically with regard to contracts concluded online, the CJEU has further developed the requirement of functional equivalence to written contracts. Two judgments seem to be particularly relevant in this regard. First, in El Madjoub, a case falling under the Brussels I Regulation, the CJEU applies Article 25(1)(a) and Article 25(2) to a transaction between two professionals.Footnote 27 The general terms and conditions of the seller, including a choice of court agreement, have been accepted online by the buyer by clicking for acceptance, a “click wrapping agreement”. The CJEU confirms that that party’s mere possibility of saving and/or printing the communication on the choice of court agreement before the conclusion of the contract is sufficient for the clause to qualify as a formally valid choice.Footnote 28 Second, in Tilman, a case decided under the 2007 Lugano Convention, the parties concluded a contract in writing that, in turn, referred to the general terms and conditions which were accessible through a hypertext link.Footnote 29 This form is valid, according to the CJEU, as long as the link functions and can be activated by a party exercising ordinary diligence. The fact that, other than in the El Madjoub circumstances, there was no box on the webpage to be ticked for agreement, is not decisive. The CJEU considered that it was possible to access the general terms and conditions before the contract was signed and, by signing the contract, the relevant party accepted those terms and conditions.Footnote 30

In other decisions, the CJEU insists on an autonomous approach to an agreement to jurisdiction as “an independent concept of EU law and as giving full effect to the principle of freedom of choice.”Footnote 31 The basic pillar for such “independent concept” appears to be a presumption that parties agree on the chosen court provided their communication meets the formal requirements set out by Article 25 Brussels I.Footnote 32 This presumption is without prejudice to a substantive challenge, as discussed below in Section 2.

Before examining how this presumption works in the presence of a substantive challenge, let us turn to the corresponding provisions of the 2005 Choice of Court Convention. Is a similar presumption possible in cases falling under the scope of this Convention?

The opinions on this matter widely differ, above all because the application of the Convention is still in its early stages.Footnote 33 For our current purposes, it is sufficient to consider whether inferring consent from the fulfillment of the formal requirements is possible in the context of the 2005 Choice of Court Convention, subject to a further substantive challenge to be examined under Section 2. As I see it, the CJEU would have no difficulty in extending the presumption based on the fulfillment of the formal requirements to cases where Article 3I(ii) of the 2005 Choice of Court Convention applies. I believe that such an analogous interpretation is compatible with the wording and the objectives of the Convention and, within the specific context of EU law, it fosters the goal of alignment between the two instruments under review.

However, the proposed alignment in the instruments’ interpretation is not equivalent to a fully autonomous notion of agreement to jurisdiction under these instruments. In fact, both instruments unlock the operation of the law of the chosen court to substantiate a claim relating to issues of substantive validity. In any event, this means that the applicable instrument is not exhaustive and defers to the domestic laws on this matter. The consequences of this referral are discussed in the next Section.

2. Subject to the Existence and Substantive Validity of the Agreement

The existence and substantive validity of the choice of court agreement is essential to establish consent to jurisdiction. Even when the autonomous formal requirements are met, and consent to jurisdiction is inferred from this formal compliance, a party may challenge the effects of such apparent agreement—by reference to the “unless” clause in either Article 25(1) Brussels I Regulation, or Articles 5(1) and 6(a) of the 2005 Choice of Court Convention.Footnote 34 These three provisions share the same rationale and lead to two mandatory consequences: For the chosen court, an obligation to hear the case “unless the agreement is null and void as to its substantive validity”Footnote 35 under the law of the chosen court’s law and, conversely, an obligation to decline jurisdiction for any other court.Footnote 36 The alignment was purposefully introduced in the current Brussels I Regulation to ensure a parallel legal treatment of matters of substantive validity between the Convention and the Regulation. Given that the rules in the Convention were the source for its counterpart in the currently applicable version of the Regulation, it seems reasonable to first examine this matter under the Convention, and then consider whether any “conventional findings” are transposable to the Regulation. However, as things stand, there are no clear lessons to infer from the operation of the Convention. In the absence of persuasive case law, the sections below refer to different approaches suggested by commentators.

2.1. A “question of fact” Approach

Some authors characterize the issue of the existence of an agreement, and thus of consent, as a preliminary question to the assessment of the legal validity of the clause. Above all, the Explanatory Report on the 2005 Choice of Court Convention states that:

A choice of court agreement cannot be established unilaterally: There must be agreement. Whether there is consent is normally decided by the law of the State of the chosen court, including its choice of law, though in some circumstances capacity is also determined by other systems of law. However, the Convention as a whole comes into operation only if there is a choice of court agreement, and that assumes that the basic factual requirements of consent exist (emphasis added).Footnote 37

In other words, the Explanatory Report generally opts for the view, as developed below, that consent is one of the elements in the assessment of the clause’s substantive validity.Footnote 38 As such, it is to be examined on the basis of the applicable law determined by Articles 5, 6 and 9 of the 2005 Choice of Court Convention. However, the Report also suggests that the “basic factual requirements of consent” are a prerequisite and their (non-)existence can be assessed by the domestic court using its own factual analysis.Footnote 39

In a similar vein, in the context of the Brussels I Regulation, some scholars from the common law tradition suggest that “consensus in fact” constitutes a requirement for a jurisdiction agreement to be enforceable under Art. 25 Brussels I Regulation.Footnote 40 Reference is principally made to the Saey Home & Garden judgment,Footnote 41 where the CJEU held that the seized court has to determine whether “consensus between the parties is in fact established” (emphasis added). This formulation could indeed be interpreted as a requirement of factual consent as a prerequisite for a choice of court agreement. However, other linguistic versions of the relevant paragraph of the Saey judgmentFootnote 42 and the reference in that paragraph to the formal validity requirements as the basis to infer an agreement seem to suggest otherwise. Of course, if nothing in the facts of the case points in the direction of an agreement between the parties, there is no point in scrutinizing the legal effects of a hypothetical choice. However, there is no prerequisite based on a factual assessment of consent.

2.2. A “preliminary matter” Approach

A different view has been put forward in the context of the 2005 Choice of Court Convention. Brand and Herrup argue that the issue of the existence of an agreement, with consent as a prerequisite, is different from the assessment of the substantive validity of that agreement. These scholars, therefore, suggest that there must be a prior control about the existence of such agreement and, for that matter, “the law of the forum—including its choice of law rules will apply to that determination.”Footnote 43

While I appreciate the reasons for a separate assessment of consent, e.g., in cases of unconscionability, unequal powers between the parties, etc., I also agree with Keyes and Beaumont that a disconnected approach to consent, whereby the latter is assessed as a preliminary matter to the Convention’s applicability, does not sit well with a literal or historical interpretation of the Convention.Footnote 44 As to a literal interpretation, the text of the Convention’s relevant provisions does not refer to a separate assessment of consent by reference to the law of the seized court. Furthermore, the travaux préparatoires make clear that the matter was effectively discussed during the negotiations and led to a text with reference to the law of the seized court in other sections of Article 6, but not in the unless clause.Footnote 45 As such, I see no textual or historical support for this interpretation.

2.3. A Dual Approach

The two approaches discussed so far share a common factor, which is the idea that a choice of court agreement is, or ought to be, the result of prior consent, of a meeting of the minds that brings an agreement into existence. Consequently, using a legal fiction, i.e., the formal validity of the clause, to infer consensus among the parties is considered to be counterintuitive because the will of the parties logically precedes their choice, and not the reverse.

From a doctrinal perspective, however, the courts are bound by the instruments as they are drafted and interpreted. When dealing with the effects of choice of court agreements, it seems to me that the existence of consent, or rather agreement, can be presumed when the formal requirements are met, as set out above, unless the material consent required for an agreement does not exist or is invalid.

This is not to say that the current solution is without difficulties. Even if we accept that the matter under review can only be either a matter of formal validity or a matter of substantive validity, many points of uncertainty remain: What qualifies as material or substantive? Which substantive elements may lead to the agreement being “null and void”?

One way of dealing with these questions would be to accept that there cannot be uniform answers because the 2005 Choice of Court Convention, followed by the Brussels I Regulation, opted for a conflictual solution, and thus indirectly for any existing differences in the legal treatment of such issues in domestic rules. It is indeed for “the law of the State of the chosen court” to determine whether a challenge to the agreement is possible, which in turn requires the assessment of the relevant notions of nullity, voidness, substantive validity, etc. under that governing law.Footnote 46

One should at least expect that the relevant applicable law is easily ascertainable. However, as things stand, it is unclear whether the applicable law is the substantive law of the State of the chosen court or whether it includes the relevant conflict-of-laws rule of that State. The latter is the prevailing view, given the authoritative weight of the Convention’s Explanatory Report and the parallel recital in the Regulation’s Preamble.Footnote 47

How do these uncertainties affect the operation of the Regulation and the Convention so far? In the context of the 2005 Choice of Court Convention, the presumption of the jurisdiction agreement when the formal requirements set out by Article 3 are met, has been tacitly confirmed in incipient practice.Footnote 48 In Ebury,Footnote 49 Mr Justice Jacobs referred to the conclusion of agreements by using online application forms that include a link to general conditions that most parties—including judges!—fail to read before agreeing to them by ticking a box. As he phrased it:

[I]n e-commerce, it is now commonplace for a person to agree to another person’s terms and conditions by ticking the appropriate box when completing an on-line application form. Equally commonplace, at least speaking personally, is for a person to fail to do so and then to receive a reminder that the box must be ticked in order for the transaction to proceed.Footnote 50

Jacobs was thus of the view that the defendant assented to a jurisdiction clause included in the terms and conditions of an online contract concluded between a Belgian and an English company. Unfortunately, the High Court did not explicitly affirm that the case fell under the scope of the 2005 Choice of Court Convention,Footnote 51 perhaps because the English proceedings were geared towards an anti-suit injunction in view of the parallel proceedings pending in Belgium. The question of available remedies is another current source of contention in light of the revival of anti-suit injunctions requested to English courts if litigation is commenced in EU Member State courts in breach of English dispute resolution agreements.Footnote 52

In any event, Justice Jacobs referred to English law as the applicable law to assess what is referred to in the judgment as the question of “incorporation,” that is, whether a choice of court agreement that is inserted in one of the parties’ standard terms is incorporated into the parties’ agreement.Footnote 53 This question is characterized as one of alleged insufficient consent, and examined by reference to English law. There is an explicit mention to Article 10 Rome I Regulation as the choice of law rule that would make English law applicable.Footnote 54 Again, the judgment does not take a firm position on this matter, as it also states that Belgian law would apply according to Article 10 (2) Rome I.Footnote 55 In the end, English law is applied to the issue of agreement.Footnote 56

In sum, it is uncertain (1) which instrument applies to this case, arguably the 2005 Choice of Court Convention, and 2) how is the Rome I Regulation applicable when the validity of choice of court agreements is explicitly excluded from its scope. It seems that the post-Brexit domestic version of Rome I maintains such exclusion.Footnote 57

In the context of the Brussels I Regulation, the CJEU has recently dealt with consent-related matters, including (1) the question of whether the reference to the law of the chosen court in the “unless” clause in Article 25 refers to substantive law or conflict of laws rule or (2) the matter of third-party enforceability of choice of court agreements.

In Ryanair v. Delayfix, the CJEU could arguably have expressed a preference for the application of the substantive law when it held that “where the referring court assesses the validity of the jurisdiction clause, it falls to that court, therefore, to do so in the light of the legislation of the Member State whose courts are designated in that clause, that is to say, in the light of Irish law.”Footnote 58 However, as observed by other commentators,Footnote 59 a formulation referring to the “legislation” of a State remains open to different interpretations as to whether it includes the Irish conflict of laws rule or not.

In the Maersk joined cases,Footnote 60 the reach of the choice of court agreement beyond the nominal parties to the underlying transaction gave rise to an additional source of contention. In principle, contractual arrangements—including dispute resolution clauses—will have effect only with regard to the relationship between the parties who agreed to it on conclusion of that contract. However, the proceedings may involve another party and the question is then whether the choice of court agreement of the original parties is enforceable on this third party. Otherwise put, can one infer a third party’s agreement to the choice of court if that third party neither expressly, nor individually, nor separately, consented to that clause?

Specifically, the dispute concerned insurance companies that were subrogated to the rights of their respective insured companies in claims for damages brought against a maritime transport operator, Maersk.Footnote 61 Between the transport operator and the insured companies, there was a bill of lading with a jurisdiction clause on the document’s reverse in favour of the High Court of Justice of England and Wales. Nonetheless, the insurance companies filed claims against Maersk in Spain.Footnote 62

The CJEU was therefore asked to determine whether, under Article 25 of the Brussels I Regulation, such choice of court affected the claimants who, as such, were not a party to the contract for the carriage of goods.Footnote 63

Relevantly to the present analysis, the CJEU held that the “unless” clause in Article 25 of the Brussels I Regulation does not govern the enforceability of a jurisdiction clause incorporated in a bill of lading against a third-party holder of that bill. Instead, it is for the Spanish court, as the court seised of the matter, to answer that question “in accordance with national substantive law as established by applying its rules of private international law.”Footnote 64 These substantive rules must in any event be consistent with previous CJEU caselaw about third-party effects of jurisdiction agreements. In that respect, a domestic rule that limits third-party effects to circumstances where the clause is “individually and separately” negotiated with the third party is too restrictive in line with previous CJEU case law and must, as such, be set aside by the domestic court.Footnote 65

With these judgments, the CJEU confirms the quasi-autonomous notion of agreement for jurisdiction purposes in the context of the Brussels I Regulation. Importantly, the CJEU refers to a jurisdiction clause as “an independent concept of EU law” built upon its previous caselaw, on the Brussels I Regulation or its predecessors. Specifically for the issue of the clause’s third-party effect in case of a subrogation to all of the rights and obligations of one of the original parties to the contract, the ”unless clause” is not applicable. It is perhaps no coincidence that, in the Maersk joined cases, the operation of the “unless clause” would have directed to English law. Instead, the CJEU relies on its previous case law on third-party effects of the jurisdiction clause. This includes the operation of another choice of law rule, i.e., the seized court’s choice of law rule.

For our present purposes, these judgments confirm a quasi-autonomous notion of agreement to jurisdiction under EU law. The building blocks of such notion include an inferral of consent from the fulfillment of the formal requirements and the reference to the relevant applicable laws, provided EU substantive requirements, either those set out in legislation such as Directive 93/13 on Unfair TermsFootnote 66 or established by CJEU case law, are met by such domestic laws.

It is hard to anticipate whether the latest CJEU case law will be applied by analogy—in the interest of the alignment between instruments—in cases falling under the scope of the Choice of Court Convention. As EU courts deal with cases falling under one or another legal instruments, the CJEU precedents should be taken into account. On the other hand, the courts of other Contracting States may follow a different interpretative path. In such scenarios, it is important to note that the 2005 Choice of Court Convention is subject to an autonomous interpretation. Indeed, within the framework of the Convention, there is the “need to promote uniformity in its application” according to Article 23 of the 2005 Choice of Court Convention.Footnote 67 Uniform interpretation, understood as the reciprocal consideration of the Convention’s interpretation by courts in Contracting States, should be the main consideration in such cases, even if it results in divergent interpretations of the Convention and Regulation by EU courts.

In any event, basic alignment between both instruments is possible. As set out above, both instruments follow a parallel approach with regard to the separability doctrine, the inference of consent from the fulfillment of the formal requirements, and with regard to the substantive assessment of the choice of court agreement.

E. And Asymmetries…

The analysis so far has focused on the similarities between both instruments. However, a perfectly synchronized application is not possible, nor even desirable, as noted above, when it stands in the way of an autonomous application of the 2005 Choice of Court Convention by Contracting States. This Section refers to two currently relevant questions where an interpretative alignment may not be possible.

I. Internationality Requirement?

The CJEU rendered its Inkreal ruling in 2024.Footnote 68 The request for a preliminary ruling sought to ascertain whether the Regulation’s applicability is subject to the condition that the litigants’ domicile should be in different Member States. In particular, the referring court was seized in the context of proceedings between two companies domiciled in the same Member State, and bound by a contract whereby a choice of court agreement in favour of a foreign court had been inserted.

In Inkreal, the CJEU helpfully ruled that a choice of court agreement in favour of another Member State is sufficient as a foreign element for such a case to fall under the Regulation.Footnote 69 Despite mixed reactions in doctrinal writings,Footnote 70 it is now clear that the Brussels I Regulation covers cases where the parties’ respective domiciles are in the same Member State, provided such parties have agreed on a choice of court agreement in favour of the court of another Member State.

Conversely, such a broad interpretation of the internationality requirement seems unlikely under the Convention. The starting point is the same: The Convention only applies to international cases and, elaborating on the internationality requirement, Article 1 of the Convention makes a distinction between jurisdiction and recognition and enforcement situations. For our current comparison, a case is considered to be international “unless the parties are resident in the same Contracting State and the relationship of the parties and all other elements relevant to the dispute, regardless of the location of the chosen court, are connected only with that State.”Footnote 71

The international requirement appears to be met when parties choose a court in a Contracting State for the purposes of the Hague Convention being applied even if they are not domiciled there. For instance, if a contract between a Chinese seller and a U.S. buyer contains a choice of court clause in favour of “the courts of England and Wales, to the exclusion of all other courts” the Convention applies.Footnote 72

Is it then conceivable to apply the Convention to a situation like the Inkreal one? As I see it, there is nothing in the wording of Article 1 that makes the Convention inapplicable in a mainly domestic situation whereby parties have agreed upon a choice of court jurisdiction in favour of a foreign court—of a Contracting State. However, the Convention’s Explanatory Report and Advocate General De la Tour’s Opinion in Inkreal interpret the internationality requirement otherwise under the Convention.Footnote 73 The CJEU did not follow the Opinion of its Advocate General on this particular instance, without expressly taking a position on the internationality requirement under the Convention.Footnote 74 The CJEU only observes that the rule under the Convention “does not cast doubt on [the CJEU] interpretation” and “reflects a choice made by its authors, in the light of the need for a solution which could command broad international support.”Footnote 75 Accordingly, the interpretation of the internationality requirement under the Convention remains open.

II. Asymmetric Jurisdiction Clauses

Asymmetric jurisdiction clauses in the instruments under review is a perennially controversial matter in practice and doctrinal writings.Footnote 76 Simply put, asymmetric jurisdiction clauses allow one of the parties to file proceedings elsewhere than in the chosen court, while the other party is limited to filing proceedings in the designated court.

For our present analysis, the effects of asymmetric jurisdiction clauses under the Regulation and the Convention appear to diverge. On the one hand, the Convention limits its application to exclusive choice of court agreements and the Convention negotiators regarded asymmetric clauses as non-exclusive, and thus outside the scope of the Convention.Footnote 77 On the other hand, the Regulation does not limit its applicability to exclusive jurisdiction rules so its applicability to asymmetric jurisdiction clauses would be possible. Such clauses would not be excluded from the Regulation. Another question is, however, whether they are valid under the Regulation and, for that matter, whether their validity could be challenged on the basis of the unless clause.Footnote 78

In practice, variations are much wider. For instance, under the 2005 Choice of Court Convention, it is striking to find contradictory judgments rendered by the same domestic court on whether the exclusivity requirement is met, and thus whether a case falls within or outside the scope of the Convention.

In the Juno case,Footnote 79 the Amsterdam court of first instance considered that the following clause was non-exclusive, as it was limiting the forum shopping options of the Guarantor but not the Beneficiary. The clause read as follows: “14.2 For the exclusive benefit of the Beneficiary and Juno Holdings, the Guarantor irrevocably agrees that the courts of England are to have exclusive jurisdiction to settle any dispute ….”Footnote 80 Consequently, the Amsterdam court decided against the application of the 2005 Choice of Court Convention in this case.

Conversely, the same Amsterdam court ruled that the following clause was exclusive, despite the literal wording used in the clause:

25.2 The Parties submit to the non-exclusive jurisdiction of the courts of England and Wales as regards any claim, dispute or matter arising out of or relating to this Agreement or any of the documents to be executed pursuant to this Agreement, with the potential exception of claims or disputes regarding the Property which due to its locality may fall to be adjudicated on by courts within which the Property is situated.Footnote 81

As England was the law of the chosen court, the Amsterdam court relied on an expert opinion of an English QC. According to this legal opinion, the first part of this clause should be read as an exclusive clause.Footnote 82

Under the Brussels I Regulation, a pending request for a preliminary ruling in the Società Italiana Lastre case is eagerly awaited.Footnote 83 The judgment is expected to reduce the striking interpretative differences about such clauses in comparative practice. By assessing the relevance and application of the unless clause by the disadvantaged party in an asymmetric clause, the position of the CJEU on the articulation of the unless clause within the operation of Article 25 Brussels I Regulation may be further defined. This, in turn, may provide further guidance for EU courts dealing with analogous issues under the Convention.

F. Concluding Remarks: Need for More Convergence?

A comparative assessment of “consent to jurisdiction” under the Brussels I Regulation and the 2005 Choice of Court Convention reveals basic convergence, possible friction points and several lingering uncertainties.

Convergence was purposefully sought and achieved by the EU legislator when the current version of the Brussels I Regulation was adopted. As a result, the relevant articles in the two instruments—Article 25 Brussels I Regulation and Article 3 Choice of Court Convention—show significant similarities. In particular, both instruments connect formal validity with a presumption of consent. They also resort to a common applicable law solution to assess the agreement’s substantive validity. This two-step approach—inferred agreement when formal requirements are met and residual challenge by reference to the law of the chosen court—provides the essential components of “agreement to jurisdiction” as “an independent concept of EU law” under the Regulation.Footnote 84 Given its wording and objectives, it was argued that this two-step approach is extensible to the Convention, leading to convergence.

Next, the limits of the convergence between instruments were explored. Friction points may arise, for instance about the internationality requirement or about the treatment of asymmetric clauses. While case law is still under development, EU courts shall resort to the interpretative authority of the CJEU while, for the interpretation of the Convention, other Contracting States’ decisions and commentaries should be taken into account. It was argued that the overall objective of ensuring the autonomous interpretation of each instrument within its respective scope of application should prevail over alignment between the instruments.

In sum, convergence has limits and a uniform notion of consent for jurisdictional purposes across different legal instruments is unlikely to emerge. However, this is not to say that each instrument should chart its way. After all, both instruments share the full effectiveness of choice of court agreements as a goal and, consequently, their proper operation may influence dispute settlement choices in favour of court-based litigation.

Acknowledgments

The author is thankful to Dr. Mayela Celis Aguilar (Maastricht University) and research assistant Camila Ugaz Heudebert for their assistance.

Competing Interests

The author declares none.

Funding Statement

No specific funding has been declared in relation to this article.

Author Biographical Information

Full Professor Maastricht University (The Netherlands) and University of Antwerp (Belgium); Visiting Professor University of Johannesburg (South Africa) and Adjunct Professor IE University (Spain). I am thankful to my colleague Dr. Mayela Celis Aguilar (Maastricht University) and research assistant Camila Ugaz Heudebert for their assistance.

References

1 See Council Regulation 1215/2012, art. 72, 2012 O.J. (L. 351) (EC) [hereinafter Brussels I Regulation] (finding that this is without prejudice to the application of 2007 Lugano Convention in cases where the parties—of which at last one is domiciled in a Contracting State to that Convention—have chosen a court in Iceland, Norway or Switzerland); The Hague Convention on Choice of Court Agreements art. 26, para. 2, June 30, 2005, 3110 U.N.T.S. I-53483 [hereinafter Choice of Court Convention]; Convention on Jurisdiction and the Recognition and Enforcement of Judgements in Civil and Commercial Matters art. 23, Dec. 21, 2007, 2658 U.N.T.S. 47299 [hereinafter the Lugano Convention].

2 See Brussels I Regulation, supra note 1, art. 25; see also Choice of Court Convention, supra note 1, art. 3.

3 See Buxbaum, infra note 5; see also Coyle, infra note 5.

4 Mallory v. Norfolk S. Ry. Co., 600 U.S. 122 (2023).

5 See Hannah Buxbaum, Adhesive Forum Selection Agreements and Access to Justice: The Function and Limits of Anti-Waiver Protections, in this issue; John F. Coyle, Notice, Consent and Choice-of-Jurisdiction Clauses, in this issue. See also Maggie Gardner, Mallory Decision Opens New Path for Personal Jurisdiction, Transnat’l Litig. Blog (June 28, 2023), https://tlblog.org/mallory-decision-opens-new-path-for-personal-jurisdiction/; Linda J. Silberman, The End of Yet Another Era? Some Reflections on Mallory, Transnat’l Litig. Blog (July 11, 2023), https://tlblog.org/the-end-of-yet-another-era/; Personal Jurisdiction— General Jurisdiction—Consent-by-Registration Statutes—International Shoe and Its Progeny—Mallory v. Norfolk Southern Railway Co., 1 Harv. L. Rev. 137, 360–69 (2023).

6 See, e.g., Hugh Beale, Bénédicte Fauvarque-Cosson, Jacobien Rutgers, & Stefan Vogenauer, Cases, Materials and Text on Contract Law 101–15, 395–97, 413–20 (3rd ed. 2019); Larry A. DiMatteo, Principles of Contract Law and Theory 94-98 (Edward Elgar ed., 2023); see also Kane Abry, The Construction, Sources, and Implications of Consensualism in Contract: Lesson from France 201–09 (Springer ed., 2023).

7 Admittedly, one could argue that the relevance of consent in both legal instruments is implicit in the use of “agreement” as the relevant legal notion. See Choice of Court Convention, supra note 1, at arts. 3(a), 5(1), 6(a), 9(a); and see Brussels I Regulation, supra note 1, at art. 25 (using the term “agreement” in both the Choice of Court Convention and the Brussels I Regulation). See also Trevor Hartley & Masato Dogauchi, Explanatory Report of the Convention of 30 June 2005 on Choice of Court Agreements, in Proceedings of the Twentieth session, Tome III: Choice of Court 691, paras. 94-97 (Permanent Bureau ed., Hague Conf. on Priv. Int’l L. 2010) [hereinafter Hartley & Dogauchi, Explanatory Report] (referring to consent); see also doctrinal commentaries on Article 25 Brussels I Regulation (same). See, e.g., Francisco Garcimartín, Prorogation of Jurisdiction–Choice of Court Agreements and Submission, in The Brussels I Regulation Recast 287, 287–98 (Andrew Dickinson & Eva Lein eds., 2015) (using “consensus” and “consent” interchangeably).

8 See Brussels I Regulation, supra note 1, arts. 25, 26.

9 See Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, July 2, 2019, https://www.hcch.net/en/instruments/conventions/status-table/?cid=98 (status table) (providing that on 23 June 2025, the Convention applies in 38 Contracting Parties); see e.g., Marta Pertegás & Louise Ellen Teitz, Prospects for the Convention of 30 June 2005 on Choice of Court Agreements, in A Commitment to Private International Law: Essays in Honour of Hans van Loon 465, 465–76 (Permanent Bureau ed., 2013) (providing the not fully materialized prospects for this Convention).

10 See Gralf-Peter Calliess, Reflexive Contract Law: Party Autonomy and the Constitutional Right to a Remedy, in this volume.

11 Opinion of Advocate General Szpunar, Case C-222/15, Hőszig kft v. Alstom Power Thermal Services, paras. 49–50 (Apr. 7, 2016); Opinion of Advocate General De La Tour, Case C-566/22, Inkreal s.r.o. v. Dúha Reality s.r.o., para. 42 (Oct. 12, 2023).

12 Consolidated Version of the Treaty on the Functioning of the European Union, art. 216(2), 2012 O.J. (C 326).

13 See Paul Beaumont & Mary Keyes, Choice of Court Agreements, in A Guide to Glob. Priv. Int’l L. 393, 393–405 (Jayne Holliday & Paul Beaumont eds., 2022); Trevor C. Hartley, Civil Jurisdiction and Judgments in Europe: The Brussels I Regulation, the Lugano Convention, and the Hague Choice of Court Convention 233–86 (2nd ed. 2023); Matthias Weller, Choice of Court Agreements Under Brussels Ia and under the Hague Convention: Coherences and Clashes, 13 J. Priv. Int’l L. 91, 91–129 (2017); Adrian Briggs, Civil Jurisdiction and Judgments 170 (Informa L. from Routledge 2015); Marta Pertegás, The Revision of the Brussels I Regulation: A View from the Hague Conference, in The Brussels I Review Proposal Uncovered 199–202 (E. Lein ed., British Instit. of Int’l and Comp. L. ed. 2012); Marta Pertegás Sender, Nuevas Reglas Internacionales sobre las Cláusulas de Elección de Foro en Contratos Internacionales: El Convenio de La Haya y el Reglamento Bruselas I bis, 14 Anuario Esp. Derecho Int’l Priv. 111, 111–26 (2014-2015).

14 Brussels I Regulation, supra note 1, art. 24.

15 Id., arts. 16, 19, 23.

16 Id.

17 See Choice of Court Convention, supra note 1, art. 2.

18 See id.; see also Brussels I Regulation, supra note 1, arts. 16, 19, 23.

19 See Declaration of the European Union of June 11, 2015, on the Convention on Choice of Court Agreements, 2015 (EC), https://www.hcch.net/en/instruments/conventions/statusttable (declaration under Convention art. 21).

20 See Choice of Court Convention, supra note 1, art. 2.

21 Brussels I Regulation, supra note 1, art. 1.

22 Pedro De Miguel Asensio, Conflict of Laws and the Internet 410–14 (Edward Elgar ed., 2024) (providing further references to specialized literature).

23 Pedro De Miguel Asensio, Conflict of Laws and the Internet 418 (Edward Elgar ed., 2024).

24 Brussels I Regulation, supra note 1 (noting that the Brussels I Regulation allows for other forms as well, in particular, “a form according to the regular practices between the parties; or […] a form which accords to the common usages in the particular trade or commerce concerned”). See also Choice of Court Convention, supra note 1.

25 See Case C-150/80, Elefanten Schuh GmbH v. Pierre Jacqmain, ECLI:EU:C:1981:112, para. 24 (June 24, 1981) https://curia.europa.eu/juris/listejsf?num=c-150/80 (holding that the validity of an agreement conferring jurisdiction may not be called into question solely on the ground that the language used is not the one prescribed by a legislation, and referencing to the need to cancel out the effects of unread clauses in contracts, “such as clauses in printed forms for business correspondence or in invoices, if they were not agreed to by the party against whom they operate”); Case C-222/15, Hőszig Kft. v. Alstom Power Thermal Servs., ECLI:EU:C:2016:525, para. 36 (July 16, 2015) (holding that a jurisdiction clause, which, is set out in “the client’s general terms and conditions, referred to in the instruments witnessing the contracts between those parties and forwarded upon their conclusion, designating the courts of a Member State meets the requirements of Article 23(1) of the previous Brussels I Regulation, now Article 25 Brussels I Regulation).

26 See Case C-436/16, Georgios Leventis and Nikolaos Vafeias v. Malcon Navigation Co. Ltd. & Brave Bulk Transp. Ltd., ECLI:EU:C:2017:497, para. 34 (June 28, 2017); see also Mukarrum Ahmed, Who is Bound by Choice of Court Agreements in Bills of Lading?, GAVC L. (May 27, 2024), https://gavclaw.com/2024/05/27/who-is-bound-by-choice-of-court-agreements-in-bills-of-lading-guest-blog-on-cjeu-maersk-by-dr-mukarrum-ahmed/.

27 See Case C-322/14, Jaouad El Majdoub v. CarsOnTheWeb.Deutschland GmbH, ECLI:EU:C:2015:334, paras. 33–36 (May 21, 2015).

28 See Majdoub, Case C-322/14 at paras. 33–36.

29 See Case C-358/21, Tilman SA v. Unilever Supply Chain Co. AG, ECLI:EU:C:2022:923, paras. 51–52 (Nov. 24, 2022) (citing a jurisdictional clause is validly concluded pursuant to Article 23 (1) and (2) of the Lugano Convention where it is contained in the general terms and conditions referred to in the written contract by means of an inclusion of a “hypertext link to a website, access to which allows those general terms and conditions to be viewed, downloaded and printed prior to that contract being signed” even if a party has not been formally asked to accept those terms and conditions).

30 Id.

31 See Case C-519/19, Ryanair DAC v. Delayfix, ECLI:EU:C:2020:933, para. 38 (Nov. 18, 2020) (providing further references cited in that paragraph).

32 See id.; see also Brussels Regulation, supra note 1, art. 25.

33 Andrea Schulz, The Hague Convention of 30 June 2005 on Choice of Court Agreements, 7 Y.B. Priv. Int’l L. 8, 8 (2005) (stating the formal validity requirements of the Convention are the minimum threshold for the operation of the Convention); Beaumont & Keyes, supra note 13, at 395 (defending that most “consent” issues are either governed by the applicable law rule for substantive validity or the rule for capacity to enter the agreement).

34 See Brussels I Regulation, supra note 1, art. 25(1); see also Choice of Court Convention, supra note 1, arts. 5(1), 6(a).

35 Id.

36 Id.

37 Trevor Hartley & Masato Dogauchi, Explanatory Report of the Convention of 30 June 2005 on Choice of Court Agreements, in Proceedings of the Twentieth session, Tome III: Choice of Court 691, paras. 94–97 (Permanent Bureau ed., Hague Conf. on Priv. Int’l L. ed. 2010) [hereinafter Hartley & Dogauchi, Explanatory Report].

38 See id.

39 See T. C. Hartley, Choice-of-court Agreements Under the European and International Instruments: The Revised Brussels I Regulation, the Lugano Convention, and the Hague Convention 133–34 (Oxford Univ. Press ed. 2013); Beaumont & Keyes, supra note 13, at 395–96.

40 Brooke Marshall, Asymmetric Jurisdiction Clauses 205–09 (Oxford Univ. Press 2023); Briggs, supra note 13, at 172–75.

41 See Case C-64/17, Saey Home & Garden NV/SA v. Lusavouga-Máquinas e Acessórios Industriais SA, ECLI:EU:C:2018:173, para. 25 (Mar. 8, 2018) (stating that consensus between the parties must be clearly and precisely demonstrated and that the purpose of the requirements as to form imposed by Article 25(1) is to ensure that consensus between the parties is in fact established).

42 Id. Other linguistic versions make clear that “in fact” is used here to emphasize the need for consensus and not to impose a separate assessment of a factual question. See, in French: “si la clause attributive de juridiction a effectivement fait l’objet d’un consentement entre les parties”; in Spanish: “que el consentimiento ha quedado efectivamente acreditado” ; in Dutch: “er in dat verband toe strekken te waarborgen dat de wilsovereenstemming inderdaad vaststaat”; and in German: “sollen insoweit gewährleisten, dass die Einigung tatsächlich feststeht.”

43 Ronald A. Brand & Paul M. Herrup, The 2005 Hague Convention on Choice of Court Agreements: Commentary and Documents 79 (Cambridge Univ. Press 2008) (noting that the internal law of the court seised (without choice of law rules) plays a residual role in the assessment of two other possible grounds for the agreement’s invalidity: in order to assess whether there is a lack of capacity by the party who concluded the agreement and in order to assess whether the agreement “would lead to a manifest injustice or would be manifestly contrary to the public policy of the state of the court seised.” Possibly the proponents of this approach consider that the latter ground is insufficient to counter uninformed or unequal choices. Indeed, all exceptions to the agreement’s validity are to be interpreted restrictively).

44 Beaumont & Keyes, supra note 13, at 394–95 (explaining that reference to the travaux préparatoires/Convention proceedings makes two important elements clear: First, that during the negotiations, the topic was effectively addressed by reference to formal and substantive validity only; and, second, that the U.S. delegation—and possibly other delegates—had difficulty in grappling with the concept of substantive validity and the relationship between the rules under the Convention and the existence of other national requirements relating to contract formation); Proceedings of the Twentieth Session, Tome III: Choice of Court, 572, 576 (Permanent Bureau ed., Intersentia ed. 2010).

45 See Choice of Court Convention, supra note 1, art. 6; see also Proceedings of the Twentieth Session, Tome III: Choice of Court, 572, 576 (Permanent Bureau ed., Intersentia ed. 2010).

46 See Choice of Court Convention, supra note 1,

47 See Hartley & Dogauchi, Explanatory Report, supra note 37, at para. 125; Brussels I Regulation, supra note 1, at recital 20.

48 See Choice of Court Convention, supra note 1, art. 3.

49 See Ebury Partners Belgium SA/NV v. Technical Touch BV & Anor [2022] EWHC (Comm) 2927 (UK).

50 Ebury Partners Belgium SA/NV, EWHC 2927 at 1.

51 Id.

52 Ahmed, supra note 26.

53 Ebury Partners Belgium SA/NV, EWHC 2927 at para. 8.

54 Ebury Partners Belgium SA/NV, EWHC 2927 at para. 83.

55 See Ebury Partners Belgium SA/NV, EWHC 2927 at para. 10.

56 Id. para. 87.

57 See The Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019, pt. 4 (UK).

58 See Ryanair DAC, Case C 519/19, at para. 50.

59 Ulrich Magnus & Peter Mankowski, ECPIL: European Commentaries on Private International Law 623 (Sellier Eur. L.: Otto Schmidt ed. 2023) (noting that this question remains undecided by the CJEU).

60 See generally Joined Cases C-345/22 & C-347/22, Maersk A/S v. Allianz Seguros y Reaseguros SA & Mapfre España Compañía de Seguros y Reaseguros SA v. MACS Maritime Carrier Shipping GmbH & Co., ECLI:EU:C:2024:349 (Apr. 25, 2024) (explaining that this is a case governed by the Brussels I Regulation because its filing predated the end of the post-BREXIT transitional period).

61 Id. at para. 2.

62 Id. at para. 2.

63 Id.

64 Id. at para. 51.

65 Id. at para. 10.

66 Council Directive 93/13 of Apr. 5, 1993, on Unfair Terms in Consumer Contracts, 1993 O.J. (L 95) 29–34 (EC).

67 Choice of Court Convention, supra note 1, art. 23.

68 Case C-566/22, Inkreal s.r.o. v. Dúha reality s. r. o., ECLI:EU:C:2024:123 (Feb. 8, 2024).

69 Id. at para. 11.

70 See Michael Bogdan & Marta Pertegás Sender, Concise Introduction to EU Private International Law 65 (4th ed. 2019); see also Geert Van Calster, CJEU Does Not Follow Its AG in Inkreal: Confirms Wide, Subjective Scope of International Element for Choice of Court, GAVC Law (Feb. 8, 2024), https://gavclaw.com/2024/02/08/cjeu-; Pedro Alberto de Miguel Asensio, Admisibilidad de la sumisión a tribunales extranjeros en contratos internos en el Reglamento 1215/2012, Pedro de Miguel Blog (Feb. 8, 2024), https://pedrodemiguelasensio.blogspot.com/2024/02/admisibilidad-de-la-sumision-tribunales.html; Matthias Weller, CJEU, Case C-566/22, Inkreal v. Dúha reality: Choice of another Member State’s court in an otherwise purely domestic case is sufficient to apply Art. 25 Brussels Ibis Regulation, Conflict of Laws.net (Feb. 17, 2024), https://conflictoflaws.net/2024/cjeu-case-c-566-22-inkreal-v-duha-reality-choice-of-another-member-states-court-in-an-otherwise-purely-domestic-case-is-sufficient-to-apply-art-25-brussels-ibis-regulation/; Editors of the EAPIL Blog, Online Symposium on Inkreal: Case Law, Developments in PIL, Views and Comments, EAPIL Blog (Feb. 25, 2024), https://eapil.org/2024/02/25/online-symposium-on-inkreal/. But see, Giles Cuniberti, Inkreal: Bypassing National Rules Governing Jurisdiction Clauses, EAPIL Blog (Feb. 26, 2024), https://eapil.org/2024/02/26/inkreal-bypassing-national-rules-governing-jurisdiction-clauses/ (explaining how other commentators disapprove the Regulation’s application to cases with no other international connections than the parties’ choice of a foreign court).

71 Choice of Court Convention, supra note 1, art. 1.

72 Case C-566/22, Inkreal s.r.o. v. Dúha reality s. r. o., ECLI:EU:C:2024:123 (Feb. 8, 2024), para. 36.

73 See Hartley & Dogauchi, Explanatory Report, supra note 37, at 799.

74 Id.

75 ECJ, Case C-566/22, Inkreal s.r.o. v. Dúha reality s. r. o., ECLI:EU:C:2024:123 (Feb. 8, 2024), para. 36, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:62022CJ0566.

76 See Marshall, supra note 41; see also Nischa Vreeling, Asymmetric Choice of Court under Brussels Ibis (2024) (Ph.D. dissertation, Univ. Groningen), https://research.rug.nl/en/publications/asymmetric-choice-of-court-under-brussels-ibis (giving an EU prospective).

77 Hartley & Dogauchi, Explanatory Report, supra note 37, at para. 32.

78 See Section D(II)(2.3).

79 Rechtbank Amsterdam, Nov. 11, 2022, ECLI:NL:RBAMS:2022:7521 (Neth.), https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RBAMS:2022:7521.

80 Id. at para. 2.6.

81 Rb. Amsterdam, 28 Feb. 2022, ECLI:NL:RBAMS:2022:1453 (Neth.).

82 Id. at para. 5.9.

83 This judgment was rendered after the completion of this submission. See ECJ, Case C-537/23, Società Italiana Lastre SpA v. Agora, ECLI:EU:C:2025:120 (Feb. 20, 2025), https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:62023CJ0537. For early commentaries, see Geert van Calster, CJEU on substantive validity and on asymmetric clauses: what we now know, and what we (still) don’t. A guest post by Brooke Marshall, GAVC L. (July 3, 2025), https://gavclaw.com/2025/03/07/cjeu-on-substantive-validity-and-on-asymmetric-clauses-what-we-now-know-and-what-we-still-dont-a-guest-post-by-brooke-marshall/.

84 See Brussels I Regulation, supra note 1, art. 25; see also Choice of Court Convention, supra note 1, art. 3.