The Brussels I bis regulation, which governs the rules on international jurisdiction in civil and commercial matters, allows for the parties to a contract to prorogate a court or courts of an EU Member State to settle disputes arising from a particular legal relationship. The rules on the prorogation of jurisdiction are, however, open to interpretation. In instances of uncertainty with regard to the correct application of the aforementioned rules, a preliminary reference may be addressed to the CJEU.
In particular, the preliminary references in relation to the prorogation of jurisdiction addressed to the CJEU in recent years include questions with regard to the internationality of a dispute as a prerequisite for the application of the regulation and its rules on prorogation of jurisdiction, validity of asymmetrical prorogation clauses, formal requirements for the validity of a “digital” prorogation clause and the effects of prorogation clauses on third persons. This contribution hence discusses various elements of prorogation clauses, along with relevant legal theory and
preceding case-law of the CJEU and national courts.
It follows from this contribution that the predominant interpretative guide in relation to prorogation of jurisdiction continues to be the respect for the autonomy of the parties to a contract. Another overarching theme is the uncertainties that stem from the new conflicts-of-laws rule which was first incorporated with the Brussels I bis regulation. On this front the CJEU faces ongoing preliminary references.
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