William Day writes in the Law Quarterly Review on exclusive jurisdiction agreements

William Day has written a note in the Law Quarterly Review on the common law’s discretion to enforce exclusive jurisdiction agreements in light of the decision in Zephyrus Capital Aviation Partners 1D Ltd v Fidelis Underwriting Ltd [2024] EWHC 734 (Comm), in which several other members of chambers appeared (see here).

The note discusses a number of interesting legal developments crystallised by the decision in Zephyrus as to the Court’s approach to assessing whether ‘strong cause’ has been shown not to enforce an exclusive jurisdiction agreement, namely:

• The rejection of a distinction between the quality of consent that is required for contractual purposes and that required for the exercise of autonomy in private international law
• The confirmation that ‘convenience’ factors (e.g. language and location of witnesses and documents) which are objectively foreseeable at the time of contracting are normally insufficient to constitute ‘strong cause’ but that does not extend to foreseeable factors concerning the risk of an unfair trial in the agreed jurisdiction
• The confirmation that multiplicity of proceedings and risk of irreconcilable judgments are not as factors limited by considerations of foreseeability and self-inducement (which is consistent with this raising public policy issues rather than just being a ‘convenience’ factor)
• The confirmation that a party’s subjective desire to litigate in the chosen forum is generally irrelevant (although there may still be some role for subjective knowledge at the time of contracting as to factors later relied upon as showing ‘strong cause’)
• The suggestion that the question of an unfair trial in the agreed jurisdiction is to be assessed on a balance of probabilities basis rather than the forward-looking real risk basis articulated in Popoviciu v Romania [2023] UKSC 39

The note is entitled ‘Contractualisation of civil jurisdiction’. It is in the October issue of the LQR and is now available on Westlaw here.