Asymmetric or "one-sided" jurisdiction provisions

04 December 2013

Matthew Pack, Rachel Glass

On behalf of The Mauritius Commercial Bank Limited, Bird & Bird successfully resisted the jurisdiction challenge brought by Hestia and Sujana and, subsequently, secured summary judgment on MCB's claim in debt against Hestia and Sujana. We have prepared a briefing note covering the Popplewell J. judgment in greater detail, which we would be very happy to provide.

Following the judgment of the French Court de cassation in Banque Privee Edmond re Rothschild v X (26 September 2012), there has been some doubt as to the approach that will be taken by the English Courts to asymmetric or "one-sided" jurisdiction provisions. A judgment handed down by Popplewell J. on 24 May 2013 as a result of a challenge to the jurisdiction of the English Courts in The Mauritius Commercial Bank Limited ("MCB") v Hestia Holdings Limited ("Hestia") and Sujana Universal Industries Limited ("Sujana"), in which Bird & Bird acted for MCB, confirmed the English Courts' approach in non-Brussels Regulation cases.

This judgment has attracted considerable interest, and has been referred to as authority for the proposition that the English Courts will enforce an asymmetric jurisdiction clause notwithstanding the decision of the Cour de cassation in Rothschild. However, the English Court in this case was not required to consider the impact of Rothschild in any detail in reaching its conclusions, nor was it required to consider the effect that Rothschild has on interpretation by the English Courts of Article 23 of the Brussels Regulation (a point which much of the commentary on this judgment to date has failed to pick up).

Although contracting parties may take some comfort from comments made by Popplewell J. regarding the controversial nature of the Rothschild decision, there is as yet no definitive answer as to how the English Courts may interpret such asymmetric jurisdiction clauses where required to do so under EU law.