A jurisdiction clause is a contractual provision that specifies which court has authority to resolve disputes between the parties. In cross-border commerce, where multiple legal systems may claim a connection to a transaction, these clauses provide the certainty that commercial parties need. Without one, a party may find itself defending proceedings in an unexpected or hostile forum, facing unfamiliar procedural rules and high additional costs.
The risk of so-called “torpedo” litigation, where a party pre-emptively commences proceedings in a slow-moving court to frustrate the other side’s claims, makes careful drafting essential. The High Court of Justice and the Commercial Court in London enjoy a global reputation for judicial independence, procedural rigour, and expertise in complex commercial matters. For these reasons, parties to international contracts frequently choose England and Wales as their forum for dispute resolution.
Types of jurisdiction clauses
There are three principal forms of jurisdiction clause used in international commercial contracts, each with different consequences for enforcement.
Exclusive jurisdiction clauses
These require both parties to bring proceedings only in the courts of England and Wales. They provide maximum certainty and, critically, trigger the protections of the 2005 Hague Convention on Choice of Court Agreements. Under that Convention, contracting states must give effect to the parties’ chosen court and refuse jurisdiction where proceedings are brought elsewhere in breach of the agreement. In Donohue v Armco Inc [2001] UKHL 64, the House of Lords confirmed that where parties have bound themselves by an exclusive jurisdiction clause, effect should ordinarily be given to that obligation in the absence of strong reasons for departing from it.
Non-exclusive jurisdiction clauses
These allow one or both parties to bring proceedings in England and Wales, while preserving the right to commence proceedings in another competent court. They offer flexibility but, until recently, lacked a clear international enforcement framework following Brexit.
Asymmetric (or unilateral) jurisdiction clauses
These are common in finance transactions. They typically allow one party (usually a lender) to sue in any competent court while restricting the other to a specified jurisdiction. In Commerzbank AG v Liquimar Tankers Management Inc [2017] EWHC 161 (Comm), the English Commercial Court upheld the validity of an asymmetric clause and treated it as an exclusive jurisdiction agreement for the purposes of the Brussels Recast Regulation. Practitioners should be aware, however, that some civil law jurisdictions have historically viewed asymmetric clauses with scepticism. The French Cour de cassation in Mme X v Société Banque Privée Edmond de Rothschild (2012) appeared to decide that such clauses were ineffective. However, the CJEU subsequently upheld their validity in EU law.
The European Bank for Reconstruction and Development (EBRD) uses what is, in substance, an asymmetric dispute resolution clause in its standard loan documentation. The EBRD’s model provisions typically require the borrower to submit to a specified dispute resolution mechanism, such as LCIA arbitration seated in London, whilst reserving to the EBRD (or its co-lenders) the right, at their election, to refer disputes instead to the exclusive jurisdiction of the courts of England and Wales. The EBRD may also commence proceedings in any other court of competent jurisdiction and take concurrent proceedings in multiple jurisdictions. This structure, which mirrors the Loan Market Association (LMA) standard form, reflects the commercial reality of development finance: the lender requires maximum flexibility to enforce its rights wherever the borrower’s assets may be located, whilst the borrower accepts a single, predictable forum. Practitioners drafting jurisdiction clauses in EBRD-financed transactions should ensure that any asymmetric provisions are consistent across all finance documents, including intercreditor agreements and security documentation.
Drafting best practices
In my experience, precision in language is the single most important factor in drafting an effective jurisdiction clause. When I draft clauses, I ensure they refer to “the Courts of England and Wales” rather than vague formulations such as “UK Courts” or “a friendly jurisdiction.” This is important because the UK comprises three separate legal jurisdictions (England and Wales, Scotland, and Northern Ireland), and imprecise wording can create genuine ambiguity about which court system the parties intended.
I also ensure that the scope of the clause is broad enough to capture the full range of potential claims. A formulation such as “any dispute arising out of or in connection with this contract, including any question regarding its existence, validity, or termination” will cover both contractual and non-contractual claims, such as tortious or restitutionary claims arising from the same relationship.
In addition, appointing a process agent in England is strongly advisable where one or more parties are domiciled abroad. Without a process agent, a claimant may face the expense and delay of seeking the court’s permission to serve proceedings overseas under the Civil Procedure Rules (CPR). Since April 2021, CPR 6.33(2B)(b) provides that permission is not required to serve a claim form out of the jurisdiction where jurisdiction is founded on any choice of court agreement in favour of the courts of England and Wales, but practical difficulties in effecting service abroad can still cause significant delay.
Finally, all contractual terms relating to jurisdiction must be consistent. In multi-document transactions, conflicting jurisdiction terms in standard terms, purchase orders, or invoices can give rise to “battle of the forms” arguments. I ensure that any jurisdiction clauses are clearly identified and cross-referenced across all relevant documents.
The enforcement framework post-Brexit
The UK’s departure from the EU meant that the Brussels Recast Regulation and the Lugano Convention ceased to apply. This created uncertainty about how English judgments would be enforced in EU member states, and vice versa. The enforcement framework is now built on two international conventions and, where those do not apply, on common law rules.
The 2005 Hague Convention on Choice of Court Agreements is the primary vehicle for enforcing English judgments in contracting states where the underlying contract contained an exclusive jurisdiction clause concluded after 1 January 2021. It requires the chosen court to exercise jurisdiction and obliges courts in other contracting states to refuse to hear the case and to recognise the resulting judgment.
The Hague Judgments Convention 2019, which entered into force in the UK on 1 July 2025, closes a significant gap. It applies to judgments arising from proceedings commenced on or after that date, and its scope expressly includes non-exclusive and asymmetric jurisdiction clauses, while excluding exclusive clauses to avoid overlap with the 2005 Convention. The Convention has been implemented into UK law through amendments to the Civil Jurisdiction and Judgments Act 1982. As of early 2026, contracting states include the EU (except Denmark), Ukraine, Uruguay, Albania, and (from March 2026) Montenegro.
Where neither Convention applies, enforcement of English judgments abroad depends on the domestic law of the relevant foreign state. In some jurisdictions, this process is relatively straightforward; in others, it can be protracted and uncertain. Therefore, I conduct an enforcement risk assessment at the drafting stage, considering where the opposing party’s assets are located and which enforcement routes will be available in those jurisdictions.
Practical challenges and remedies
When a party commences proceedings in a foreign court in breach of a jurisdiction clause, the English courts have the power to grant an anti-suit injunction under section 37 of the Senior Courts Act 1981. This is an order restraining a party from pursuing or continuing foreign proceedings. In The Angelic Grace [1995]1 Lloyd’s Rep 87, Lord Millett stated that there is “no good reason for diffidence in granting an injunction to restrain foreign proceedings on the clear and simple ground that the defendant has promised not to bring them.” Breach of an anti-suit injunction constitutes contempt of court and carries the risk of significant fines, asset freezes, or even imprisonment.
The doctrine of forum non conveniens, as established in Spiliada Maritime Corp v Cansulex Ltd 1 AC 460, allows a court to stay proceedings if the defendant establishes that another forum is “clearly or distinctly more appropriate.” If the defendant discharges that burden, the claimant may still resist a stay by demonstrating a real risk of being unable to obtain substantial justice in the alternative forum. Where an exclusive jurisdiction clause is in place, however, the court will ordinarily give effect to the agreement unless the party seeking to depart from it can show “strong reasons” for doing so.
The recent decision in Alimov v Mirakhmedov [2024] EWHC 3322 (Comm) illustrates the Spiliada principles in action. The dispute arose from an alleged oral agreement concerning a bitcoin mining joint venture in Kazakhstan. Although the claimant established a plausible case that the agreement was formed in London, the Commercial Court stayed the proceedings on forum non conveniens grounds, finding that Kazakhstan was “clearly and distinctly more appropriate” than England. The court emphasised that the claims were governed exclusively by Kazakh law, that the parties had substantial connections to Kazakhstan, that the location of the relevant events and assets was in Kazakhstan, and that the majority of witnesses and documents were in Russian or Kazakh. The claimant’s connections to England were found to be relatively slight and insufficient to outweigh Kazakhstan’s strong links to the dispute. The court also found no cogent evidence of a real risk of substantial injustice in the Kazakh courts. Alimov v Mirakhmedov reinforces the principle that a tenuous jurisdictional hook, such as the location of a single meeting, will not suffice where the overwhelming weight of connecting factors points to a foreign forum.
English courts also provide a strategic advantage through interim relief. Freezing orders (Mareva injunctions) can prevent a party from dissipating assets before judgment, and disclosure orders can compel the provision of information about assets worldwide. These remedies can be obtained rapidly, often on a without-notice basis, and are available to support both English and foreign or arbitration proceedings.
Action points for those entering into international contracts
Parties entering into international contracts should treat the jurisdiction clause as a core commercial term. The following practical steps will help protect their position:
- Take legal advice before signing any contract containing a jurisdiction or governing law clause, particularly where the counterparty’s standard terms may include a competing clause.
- Review existing contracts to ensure jurisdiction clauses are enforceable under the current Hague Convention framework. Pre-2021 exclusive clauses that pre-date the UK’s accession to the 2005 Convention may face enforceability challenges in some EU member states.
- Conduct an enforcement risk assessment at the outset: identify where the opposing party’s assets are located and confirm that an English judgment can be enforced there, either under a Convention or under local law.
- Ensure consistency between the jurisdiction clause and the governing law clause. Specifying the courts of England and Wales but choosing a foreign governing law, or vice versa, can create unnecessary complexity.
- Act quickly if proceedings are commenced abroad in breach of the clause. Delay weakens the prospects of obtaining an anti-suit injunction and may be treated as acquiescence.
The outlook for English jurisdiction clauses
The entry into force of the 2019 Hague Judgments Convention has materially strengthened England’s position as a forum for international commercial disputes. The gap left by Brexit for non-exclusive and asymmetric clauses is now substantially closed, and the Convention’s membership is expected to grow. As courts in contracting states begin to apply the Convention, a body of case law will develop, providing further clarity on its practical operation.
England and Wales continue to offer a combination of qualities that few jurisdictions can match: an independent and expert judiciary, a mature body of commercial law, powerful interim remedies, and a well-resourced enforcement framework. Practitioners should ensure that every international contract contains a clearly drafted jurisdiction clause, paired with an express governing law clause. Those two provisions, working together, remain the most effective means of securing commercial certainty in cross-border transactions.
Frequently asked questions
What is the difference between an exclusive and a non-exclusive jurisdiction clause?
An exclusive jurisdiction clause requires both parties to bring any dispute only before the specified courts. A non-exclusive clause gives one or both parties the right to sue in the specified courts, but does not prevent proceedings elsewhere. Exclusive clauses offer greater certainty and benefit from the enforcement regime under the 2005 Hague Convention.
Are asymmetric jurisdiction clauses enforceable in England and Wales?
Yes, the English courts have consistently upheld asymmetric clauses. In Commerzbank AG v Liquimar Tankers Management Inc EWHC 161 (Comm), the Commercial Court confirmed their validity. It gave them the protection of an exclusive jurisdiction agreement under the Brussels Recast Regulation. Some civil law jurisdictions have historically taken a different view, so practitioners should check the position in relevant foreign courts.
How does the 2019 Hague Convention improve the enforcement of English judgments?
The 2019 Convention, in force in the UK since 1 July 2025, provides a framework for the recognition and enforcement of judgments between contracting states that covers non-exclusive and asymmetric jurisdiction clauses. Previously, the 2005 Convention covered only exclusive clauses, leaving a significant gap following Brexit for other types of jurisdiction agreements.
What can I do if the other party starts proceedings abroad in breach of our jurisdiction clause?
An application for an anti-suit injunction from the English courts is the primary remedy. This will order the other party to cease or refrain from commencing the foreign proceedings. The application should be made promptly, as delay can be fatal. Breach of the injunction amounts to contempt of court.
Should I always pair a jurisdiction clause with a governing law clause?
Yes, a jurisdiction clause determines where disputes are heard, while a governing law clause determines which legal principles the court applies. Without an express governing law clause, the court will apply its own conflict-of-laws rules to determine the applicable law, which may yield an unexpected result. Including both clauses ensures the court applies the substantive law the parties intended.
To discuss any points raised in this article, please call us on +44 (0) 203972 8469 or email us at mail@eldwicklaw.com.
This article does not constitute legal advice. For further information, please don’t hesitate to get in touch with our London office.
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