In a recent decision, the French Supreme Court (Cour de Cassation) gave effect to a unilateral jurisdiction clause where it was possible to identify objectively which courts might have jurisdiction in the case of a dispute (Apple Sales International v eBizcuss: Cass. 1ere Civ, 7 October 2015, 14-16.898).
A unilateral jurisdiction clause requires one party to bring proceedings in one jurisdiction only, while the other may choose to bring proceedings in other jurisdictions. Such clauses were found to be ineffective by the French Supreme Court in the much discussed (and criticised) cases of Rothschild in September 2012 (see post) and Credit Suisse in May 2015 (see post).
The difference in the Apple case was that it wasn’t open to the party with the benefit of the clause to begin proceedings in any country that might have jurisdiction according to its own rules – the flexibility to choose another jurisdiction was restricted to the courts where the other party had its registered office, and the courts where any loss caused by the other party was suffered.
The case suggests it may be possible to draft a unilateral clause which will be upheld by the French courts. There remains however considerable uncertainty over the effectiveness of such clauses, not only in France but in a number of other jurisdictions. It is still the case therefore that careful consideration needs to be given to the appropriate dispute resolution clause in the particular circumstances of the contract in issue, taking into account the benefits and risks of the possible clauses.