In this blog post, Kristina Lukacova considers to what extent the entry into force in the UK of the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (the “2019 Hague Convention”) on 1 July 2025 has resolved uncertainty as to the enforcement of asymmetric jurisdiction agreements.
Asymmetric jurisdiction agreements
“Asymmetric” jurisdiction agreements typically require one party to bring proceedings in the designated court only, while allowing another party to bring proceedings elsewhere as well. Such jurisdiction agreements are common in financial instruments, where the lender may wish to be able to follow the assets and pursue the borrower where convenient, while limiting their own exposure to litigation to their preferred forum. See, e.g., Etihad Airways v Flöther [2022] Q.B. 303 (“Etihad”) at [5] (per Henderson LJ).
They have generated significant debate. In the EU, from 2013 onward, a series of French decisions gave rise to uncertainty as to the categorisation of asymmetric jurisdiction agreements under the Brussels Regulation and the Lugano Convention. See, e.g., Merrett (2018) 67 I.C.L.Q. 37, 47-54. That debate was largely resolved in February this year, when the CJEU ruled that asymmetric jurisdiction agreements can, in principle, fall within Article 25 of the Brussels Regulation (recast), subject to a number of conditions.
Specifically that the agreement (i) designates courts of one or several EU Member States or parties to the Lugano Convention and (ii) identifies objective factors which are sufficiently precise to enable the court seised to ascertain whether it has jurisdiction: Case C-537/23 Società Italiana Lastre v Agora ECLI:EU:C:2025:120, paras 63-67. For Article 25 of the Brussels Regulation (recast) to prevail as a ground of jurisdiction, the jurisdiction agreement also must not, in the usual way, be contrary to Articles 15, 19 or 23 or derogate from exclusive jurisdiction under Article 24.
In the UK, now that neither the Brussels Regulation (recast) nor the Lugano Convention apply, the focus has shifted to (i) the Convention of 30 June 2005 on Choice of Court Agreements (the “2005 Hague Convention”), in which the UK has participated since 2015 (originally via the EU, and subsequently in its own right since 2021), and now also (ii) the 2019 Hague Convention, which entered into force in the UK on 1 July 2025.
The 2005 Hague Convention: asymmetric jurisdiction agreements outside scope?
The 2005 Hague Convention applies to exclusive jurisdiction agreements in civil and commercial matters (Article 1(1)), governing questions of jurisdiction (Articles 5-7) and recognition and enforcement of judgments (Articles 8-15). Non-exclusive jurisdiction agreements fall outside the scope of the Convention, save for optional declarations under Article 22.
The question regarding asymmetric jurisdiction agreements is whether they fall within the definition of an “exclusive choice of court agreement”, and therefore within the scope of the 2005 Hague Convention. Article 3(a) defines an “exclusive choice of court agreement” as:
“an agreement concluded by two or more parties that … designates, for the purpose of deciding disputes which have arisen or may arise in connection with a particular legal relationship, the courts of one Contracting State or one or more specific courts of one Contracting State to the exclusion of the jurisdiction of any other courts”. (emphasis added)
The point turns on whether the words “for the purpose of deciding disputes” necessarily refer to all disputes, irrespective of which party brings proceedings; if so, asymmetric jurisdiction agreements fall outside the scope of the 2005 Hague Convention. The question remains open, at least before the English courts.
On the one hand, the Explanatory Report to the 2005 Hague Convention by Professors Hartley and Dogauchi expressly states that an asymmetric jurisdiction agreement “is not regarded as exclusive for the purposes of the Convention”: Explanatory Report to the 2005 Hague Convention, para 32. See also paras 105-106 and 249.
There is also a record, in the Diplomatic Minutes of the Meeting of Wednesday 15 June 2005, of a proposed amendment which would have made it clear that the definition of an “exclusive choice of court agreement” includes asymmetric jurisdiction agreements (by inserting the words “for some or all of the parties to the agreement”) – which was debated, but withdrawn for lack of support. See Etihad at [86].
On the other hand, the opposite suggestion by Professors Hartley and Dogauchi, in an earlier report prepared at the time of drafting of the Convention, that it “might be desirable” to make it clear that asymmetric jurisdiction agreements were excluded from the definition (by adding the words “Such an agreement must be exclusive irrespective of the party bringing the proceedings”) was not implemented either. See Commerzbank v Liquimar [2017] 1 W.L.R. 3497 (“Commerzbank”) at [39] and Merrett (2018). English commentators have noted that it is “at least arguable”, on the wording as adopted, that an asymmetric jurisdiction agreement (or at least its exclusive element) falls within the scope of the definition: Dicey (16th Ed.) at [12-090]. See also Merrett (2018) 67 I.C.L.Q. 37, 57-58.
The ambiguity on the face of Article 3(a) of the 2005 Hague Convention has not been expressly resolved. In the UK at least, obiter comments have pointed in both directions, albeit more recently tending to favour the narrow interpretation espoused by the Explanatory Report. See Commerzbank at [74] (per Cranston J): “There are good arguments in my view that the words of the definition of exclusive jurisdiction clauses in article 3(a) of the Hague Convention cover asymmetric jurisdiction clauses.” Cf Etihad at [85] (per Henderson LJ) and Borrelli v Otaibi [2024] I.L.Pr. 31 at [40].
The English courts have yet to reach a concluded view, having repeatedly left open the question. See, most recently, Hipgnosis v Manilow [2025] EWCA Civ 486 at [72] (per Sir Julian Flaux C).
To what extent does the entry into force of the 2019 Hague Convention resolve the uncertainty?
The 2019 Hague Convention deals with the recognition and enforcement of judgments in civil or commercial matters (subject to exclusions: see Article 2). It sets out, in Articles 5 and 6, bases for recognition and enforcement, and, in Article 7, bases for refusal.
Jurisdiction agreements are referred to in Article 5(1)(m), in the context of one of the bases for recognition and enforcement of judgments, in the following terms:
“1. A judgment is eligible for recognition and enforcement if one of the following requirements is met –
…
(m) the judgment was given by a court designated in an agreement concluded or documented in writing or by any other means of communication which renders information accessible so as to be usable for subsequent reference, other than an exclusive choice of court agreement.” (emphasis added)
The 2005 Hague Convention definition of an “exclusive choice of court agreement” is then repeated. This is no coincidence: in the Explanatory Report to the 2019 Hague Convention, Professors Garcimartín and Saumier explain that non-exclusive jurisdiction agreements are defined “in the negative”, by reference to the definition “taken from” Article 3(a) of the 2005 Hague Convention, to avoid overlap (or gaps) between the two Conventions. See the Explanatory Report to the 2019 Hague Convention, paras 215-216.
Further, like the Explanatory Report to the 2005 Hague Convention, the Explanatory Report to the 2019 Hague Convention says that asymmetric jurisdictional agreements fall outside the scope of the 2005 Hague Convention. See the Explanatory Report to the 2019 Hague Convention, para 217.
From a purely textual standpoint, the repetition of the same (ambiguous) 2005 Hague Convention wording in the 2019 Hague Convention does not move the dial. However, in practice, for English courts to find that an asymmetric jurisdiction agreement falls within the 2005 Hague Convention, they would need to find that both Explanatory Reports are wrong, in circumstances where asymmetric jurisdiction agreements are in any event covered by one or the other convention (subject to the other state in question being party to both conventions and subject to the applicable formality requirements and transitional provisions).
This seems unlikely, particularly where the English courts have already been leaning, in recent years, towards the conclusion that asymmetric jurisdiction agreements fall outside the scope of the 2005 Hague Convention.
However, the position before the English courts is arguably the less important aspect in practice, since the English courts would in any event give effect to asymmetric jurisdiction agreements, in principle, under the common law. See, e.g., Dicey (16th Ed.) at [12-091].
As to the recognition and enforcement of English judgments abroad, the entry into force of the 2019 Hague Convention ought to ensure that judgments on the back of jurisdiction agreements falling outside the scope of the 2005 Hague Convention – including, if foreign courts so rule, asymmetric jurisdiction agreements – will be recognised and enforced by the parties to the Convention (subject to the prescribed formal requirements and transitional provisions).
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