Whether an agreement to submit to a jurisdiction amounted to an exclusive jurisdiction clause


One of the issues in this case was whether the following clause amounted to an exclusive jurisdiction clause: "With respect to any…proceedings relating to these general terms…each party irrevocably submits to the jurisdiction of the English courts".

There is prior caselaw which supports the following principle: If the clause is transitive (ie the parties submit disputes), it is exclusive, but if it is intransitive (ie the parties submit themselves),  it is non-exclusive. Teare J noted that that principle has been criticised by the textbook Dicey, Morris and Collins on the Conflict of Laws (which said the principle "would appear to have practically nothing to recommend it").

Although the clause in issue here is not transitive, the judge said that "the notion that each party is free to submit a claim to the jurisdiction of a court other than the English court in circumstances where each party has "irrevocably" submitted to the jurisdiction of the English court is difficult".

He concluded that the meaning which the clause would reasonably by understood to bear is that it conferred exclusive jurisdiction on the English courts for claims relating to the general terms. Even if that was wrong, the fact that proceedings relating to the general terms had already been commenced in England, meant that parallel proceedings could not be commenced elsewhere (either now or following the conclusion of the English proceedings).