Unilateral Jurisdiction Agreements and the Limits of Party Autonomy Einseitige Gerichtsstandsvereinbarungen und die Schranken der Parteiautonomie

1. Unilateral jurisdiction agreements may seem unfair when viewed from a purely procedural perspective. However, the mere imbalance of jurisdictional options between the parties may be counterbalanced by a financial or other benefit for the (procedurally) disadvantaged party. The regulation does not provide for a standard of review against which the implied unfairness can be measured. 2. Unilateral jurisdiction agreements may constitute an abuse of law. Such an abuse of law is generally prohibited under the Brussels I Regulation. Thus, where an abuse of law is ascertained, the unilateral jurisdiction agreement is void. An abuse of law exists where the sole purpose of the unilateral jurisdiction agreement is to render it impossible for the disadvantaged party to file a lawsuit or to appear in court. 3. Unilateral jurisdiction agreements may infringe substantive national law. Article 25(1) Brussels I Regulation provides for the application of the law of the prorogated forum for questions concerning the agreement's substantive validity. Notwithstanding the still unclear definitive scope of Art. 25(1) Brussels I Regulation, the rules of lex fori prorogati will, in any case, apply where their purpose is to safeguard the existence of real party autonomy. 4. With regard to German substantive law, the provisions on the admissibility of standard contract terms (Secs. 305 ff. German Civil Code (BGB)) mostly fulfil these requirements. Due to the inherent imbalance in the procedural options, unilateral jurisdiction agreements differ from the conceptual approach to jurisdiction underlying the Brussels I Regulation. For this reason, where Secs. 305 ff. BGB are applicable, unilateral jurisdiction agreements are generally presumed to be void. 5. Article 31(2) Brussels I Regulation does not apply to unilateral jurisdiction agreements. Hence, these types of agreements are not immune to so-called »torpedo claims« that are filed with the sole purpose of delaying trial in the chosen court.