The Oxford Private International Law Series continues to perform the valuable function of shining close light on areas of the conflicts of laws neglected by more generalist works. Brooke Marshall’s work on Asymmetric Jurisdiction Clauses 1 is an insightful and exhaustive analysis of this problematic topic—a good book about an unsatisfactory area of the law.

The central form is exclusive forum clauses, whether arbitration clauses or exclusive jurisdiction clauses. The trend here is towards greater respect for such clauses.

Arbitration Clauses are protected by the New York Convention 1958.2 Exclusive jurisdiction clauses are defended by the Hague Convention on Choice of Court Agreements 2005 between its members, and usually enforced by most major legal systems.

One partial exception to this is the parochial approach taken by the Brussels–Lugano Regime, which does not give reflexive effect to its “prorogation” provisions—in the Brussels I Regulation Recast,3 in Art.25—and so does not enforce foreign exclusive jurisdiction clauses, except where the Hague Convention 2005 demands.

The logic of exclusive jurisdiction clauses is relatively simple: they are binding mutual promises requiring both parties to litigate all covered disputes in the chosen forum. Non-exclusive jurisdiction clauses confer jurisdiction on the chosen court but do not exclude the jurisdiction of other courts. From one perspective, they simply expand (or ratify) the scope of national rules conferring jurisdiction, and preclude, generally, arguments of forum non conveniens.

At one point there was a confusion in Sabah Shipyards (Pakistan) Ltd v Pakistan 4 that led to non-exclusive jurisdiction clauses being given a form of de facto exclusive jurisdiction. The effect of the Court of Appeal’s decision was that, once litigation had been started in the non-exclusively selected court, this made it wrongful for the other party to sue or continue to sue in a non-chosen forum. In effect this would have created a form of optional exclusive jurisdiction. However, this was over-ambitious, and a distortion of the purpose of non-exclusive jurisdiction clauses. So the Court of Appeal in Highland Crusader Offshore Partners LP v Deutsche Ban AG 5 clarified that the mere fact of litigation in the non-exclusively chosen forum did not make parallel litigation abroad vexatious or in breach of an implied term.