Asymmetric jurisdiction clauses and enforcement of English judgements following Brexit – creditors and other parties to reconsider?
Parties usually include a jurisdiction clause in their agreement to decide on which national court(s) shall have the authority to determine a dispute. In credit agreements asymmetric clauses are often used. Asymmetric jurisdiction clauses are characterized by giving the parties non-symmetric options regarding jurisdiction. In a credit agreement the creditor is typically given the right to initiate proceedings in any court of any competent jurisdiction, while the borrower may only initiate court proceedings in the one jurisdiction specified in the relevant jurisdiction clause. This ensures that the creditor can initiate proceedings against the borrower where it is incorporated, but also in any other jurisdiction where it conducts business or where any of its assets are located.[1] Further, the asymmetric clause seeks to reassure the creditor that it may only become the subject of court proceedings in its preferred jurisdiction.[2]
The question is what effect an asymmetric clause will have after Brexit?