Please note that the above clauses are only very general clauses and typical errors. We have only cited these clauses as examples. Each type of contract is different in its details, so it is generally necessary to find individual formulations and rules that respect the treaty. For example, some countries may have passed laws prohibiting the free choice of jurisdiction. Whether or not an exclusive jurisdiction clause is used depends on the facts of this case. For example, in a share purchase agreement, a seller will probably prefer an exclusive jurisdiction clause, since the seller is the most likely party sued, and he may want certainty of where it will be. The risk of being sued in foreign courts with uncertain jurisdiction is not attractive. On the other hand, in a contract to purchase shares, the purchaser may wish for a non-exclusive jurisdiction clause in order to be sure that he can bring an action before the English courts (or the courts, regardless of the jurisdiction chosen) and in the courts of any other jurisdiction in which the seller owns or may have assets. This guide focuses on the main considerations to be taken into account when drawing up a jurisdiction clause. The national court cannot assert its incompetence.
It should be remembered that, in accordance with Article 48 of the French Code of Civil Procedure and firm jurisprudence, the jurisdiction clause, which must have been very clearly specified in the contractual document signed by the defendant, must necessarily be taken into account and accepted by the defendant at the time of the drafting of the contract4. “The parties subject the courts to the exclusive jurisdiction of any dispute that arises from the agreement or in connection with this agreement.” As a general rule, such a jurisdictional agreement is drafted in such a way that the courts are “exclusively” or “not exclusively” competent. The interpretation of these concepts in legal systems may vary, but in principle consent to exclusive jurisdiction means that only agreed jurisdictions must rule on the dispute. However, in the absence of exclusive jurisdiction of the courts, the parties may take their disputes to the approved courts, but are not required to do so. If there are other related agreements that are part of the transaction, you should check whether all disputes should be resolved in the same jurisdiction. For commercial reasons, the parties often accept contrary jurisdiction clauses. This may result in parallel proceedings and other litigation to determine which jurisdiction is competent. If this is unavoidable, make sure that the drafting is clear and that the central contracts refer the disputes to the preferred court14.b) Nothing in this clause limits the right of appeal of Part A, including a third-party proceeding, against Part B before another competent court, and the introduction or continuation of the proceedings in one or more jurisdictions does not precludes the initiation of proceedings in another jurisdiction. , whether simultaneous or not, if and to the extent permitted by existing legislation. In other words, the arbitrator must decide first and foremost the existence, validity and extent of the arbitration agreement under which the dispute is referred to him.