The spirit of the French Cour de cassation’s much-maligned decision in Banque Privée Edmond de Rothschild 1 lives on. Nearly 13 years on from this judgment, in which the French supreme court refused to enforce an asymmetric jurisdiction clause due to its “potestative” character, the European Court of Justice (ECJ) held in Società Italiana Lastre SpA v Agora SARL 2 that such clauses are valid under the Brussels I Regulation (Recast)3 only if the option to sue in “another competent court” can be interpreted as referring exclusively to the courts of European Union (EU) or Lugano Convention states. Although the ruling clarifies the interpretation of Recast, Art.25(1), the logic which underpins its misgivings about asymmetric jurisdiction clauses is questionable and its conclusion belies the asserted greater certainty of EU private international law rules.

The facts were straightforward. Agora SARL (“Agora”), a one-man French company, concluded a contract with Società Italiana Lastre SpA (“SIL”), an Italian company, under which SIL was to supply panels for a construction project in France. The contract contained a jurisdiction clause which stated: