The Asymmetric Jurisdiction Clause Upheld by the CJEU and the Cour de Cassation

Key points to remember

ANALYSIS

• A challenge based on the imprecision or imbalance of an asymmetric jurisdiction clause (AJC) must be assessed solely by reference to the autonomous criteria of Article 25(1) of Brussels I bis;
• The fact that an AJC is unbalanced does not, in itself, call its validity into question;

SCOPE

• An AJC providing for an option in favor of a court precisely named in an EEA country (e.g. “Brussels” or “the seller’s place of business”) is valid;
• An AJC providing for an option in favor of a court not precisely named (e.g. “any other court”) in an EEA country is valid, subject to certain conditions;
• An AJC providing for an option in favor of a court precisely named in a non-EEA country is, in principle, valid;
• An AJC providing for an option in favor of a court not precisely named (e.g. “any other court”) and stipulated in a contract objectively located outside the EEA could run the risk of being invalidated by a court in an EEA state;

ADVICE

• It is pointless, indeed risky, to mention a jurisdiction option without clearly writing the name of that court or an objective criterion for identifying it.

Origins: conflicting case law on the validity of asymmetric jurisdiction clauses

The case that gave rise to the CJEU’s ruling concerned proceedings brought before the French courts by a project owner against a French supplier and its own Italian supplier, in a dispute relating to defects affecting a construction site. The supply contract for the works contained the following jurisdiction clause:

“The jurisdiction of the Brescia court shall apply to any dispute arising out of or in connection with this contract. Società Italiana Lastre reserves the right to bring proceedings against the buyer before any other competent court in Italy or abroad.”

The defendant company raised an objection of lack of international jurisdiction, which was dismissed by the Rennes Court of Appeal. That court held that the clause, by reserving a choice of court to only one party, failed to meet the requirements of foreseeability and legal certainty arising from the Brussels I bis Regulation and the Lugano Convention. This position was consistent with the case law of the First Civil Chamber of the Cour de cassation, which accepted the validity of asymmetric clauses provided that they met the requirements of foreseeability and legal certainty. (Cass., 1ère civ, 25 mars 2015, n°13-27.264 ; Cass., 1ère civ., 7 octobre 2015, n° 14-16.898 ; Cass, 1ère civ, 28 septembre 2022, n°21-13.686).

At the same time, the Commercial Chamber took a different approach, upholding such clauses solely on the basis of the principle of party autonomy enshrined in the Brussels I bis Regulation. (Cass. Com. 11 mai 2017, n°15-18.758).

Faced with this divergence, the Cour de cassation referred a question to the CJEU for a preliminary ruling, to determine whether the validity of such clauses should be assessed under national law or solely under the criteria of Article 25(1) of the Regulation. The CJEU answered unambiguously: validity falls exclusively within the scope of that provision, to the exclusion of substantive grounds of invalidity arising under national law.

The CJEU validates asymmetric jurisdiction clauses… subject to conditions

In its ruling, the Court of Justice of the European Union recognized the principle of the validity of asymmetric jurisdiction clauses, basing its reasoning essentially on the principle of party autonomy.

First, the CJEU resolved the question referred by the French Cour de cassation in favor of an autonomous, unified European standard of validity.

In this regard, it held that “complaints alleging that this agreement is unfair or unbalanced must be examined solely in light of the autonomous criteria set out in Article 25(1) of the Brussels I bis Regulation, and not in light of the criteria relating to substantive grounds of invalidity defined by the national law of the Member States.”

In so ruling, the CJEU took the opportunity to recall that the concept of “substantive invalidity,” referred to in Article 25(1), refers to the general grounds for invalidating a contract (defect in consent, capacity, etc.), which fall under the law of the Member State whose court is designated.

The CJEU then had to rule more specifically on asymmetric jurisdiction clauses — that is, clauses that designate a particular court for both parties while allowing one of them the option of bringing proceedings before another court. It is essential to note that the question concerned a particularly open-ended wording, in which the optional court was not identified but instead referred to by a general formula (here, “any other competent court”).

The CJEU upheld the principle of such clauses, including when drafted in general terms. However, this validation is subject to conditions: the clause must satisfy three conditions in order to meet the requirements of sufficient foreseeability and precision within the meaning of Article 25 of the Regulation:

• designate the courts of one or more Member States of the European Union or parties to the Lugano II Convention (the European Union and Switzerland, Norway and Iceland);
• identify objective elements sufficiently precise to enable the court seized to determine whether it has jurisdiction;
• comply with the provisions of the Brussels I bis Regulation which, by way of exception, lay down rules protecting insured parties, consumers and employees, and which do not derogate from any exclusive jurisdiction provided for in that Regulation.

By implication, the Court accepted that the imbalance inherent in asymmetry is not, in itself, contrary to EU law.

The CJEU left it to national courts to interpret such clauses in order to determine whether they actually make it possible to identify a court with jurisdiction. The CJEU thus clarified the legal regime applicable to asymmetric jurisdiction clauses, but left certain grey areas, which the French Cour de cassation has, in part, since undertaken to resolve.

The Cour de cassation adopts a flexible interpretation of these conditions of validity

In four rulings handed down on 17 September 2025, the First Civil Chamber of the Cour de cassation ruled on the validity of asymmetric jurisdiction clauses. The Court upheld these clauses, adopting a favorable approach in principle based on purposive reasoning, going even further than the CJEU’s position, in a more liberal direction. The Court was faced with two types of clauses.

• In two cases (notamment Lastre), the clause designated, on the one hand, the jurisdiction of a precisely identified court applicable to both parties, and, on the other hand, allowed one of them to bring proceedings before «any other competent court».
• In the other two cases, the option reserved to one of the parties allowed it to bring proceedings before a court identified on the basis of objective criteria (the court of the place where the guarantor held assets, or that of the place of the branch).

As regards the first set of clauses, the Court, exercising the interpretive power recognized by the CJEU, held — based on a search for effet utile (practical effect) — that since the contractual relationship had no connecting link with a state that was not a Member State of the European Union and not a party to the Lugano Convention, the clause allowing proceedings to be brought before “any other competent court” should be interpreted as implicitly referring to the jurisdiction rules of the Brussels I bis Regulation. The Cour de cassation concluded that, in that case, such a clause satisfies the requirement of precision laid down by Article 25.

The combined use of party autonomy and effet utile, coupled with a (very) reasonable interpretation of the factual situation, creates a genuine rule in favor of validity (favor validitatis) for asymmetric clauses.

In the second set of cases, the clauses targeted courts identifiable on the basis of objective factors, but which could, in theory, lead to courts located outside the Brussels I bis/Lugano area. The Cour de cassation, following in the footsteps of the CJEU, nevertheless upheld these clauses.

It noted, in particular (for example, in AXA), that the clause allowing proceedings to be brought before the court of the place where the guarantor held assets enabled the court to identify the competent jurisdiction on the basis of objective factors previously defined by the parties, without having to resort to the jurisdiction rules of third countries. According to the Court, this clause therefore satisfies the requirement of precision under Article 25.

Once again, the Cour de cassation sought to favor such clauses, even though the CJEU had not expressly ruled on this type of provision, having instead addressed general or imprecise clauses. The message is clear: asymmetric jurisdiction clauses are viewed favorably by the French courts, provided they refer to identifiable jurisdiction rules.

Asymmetric validity for clauses outside the EEA: one final effort…

An ambiguity remains concerning clauses stipulating an option in favor of “any competent court,” where the contractual relationship is located, in whole or in part, outside the Brussels I bis/Lugano area. The CJEU appears to harbor a degree of reservation in this respect. The Cour de cassation has not yet expressly ruled on this specific situation, even though the rulings of 17 September 2025 lay some groundwork.

A few lines of thought, and one piece of practical advice, may be offered.

• Why maintain reservations toward asymmetric clauses providing for an option in favor of “any competent court” outside the European area, when non-exclusive jurisdiction clauses are themselves permitted under the Brussels I bis Regulation? Likewise, why maintain such reservations when contractual relationships involve foreign states that are otherwise bound by multilateral (Conv. La Haye du 30 06 05)  or bilateral international conventions (France has concluded more than 40) laying down jurisdiction rules just as clear as those set out in the European instruments?
• In practice, the drafter of such a clause would be well advised to explicitly designate the court it reserves as an option. There is indeed little point in reserving the right to bring proceedings before one or more courts in any of the world’s 193 states, when, statistically, only two or three jurisdictions are of any real interest in the event of a dispute.

In other words: grasp too much and you lose your grip — including when it comes to international dispute resolution clauses.