The Court of Justice of the European Union (CJEU) has recently ruled on the validity of asymmetric forum selection clauses, which grant one party the right to bring proceedings before multiple alternative jurisdictions while restricting the other party to a single forum

On 27 February 2025 (Case C-537/23), the CJEU clarified that, under the principle of contractual autonomy set out under Article 25 of Regulation (EU) 1215/2012 (known as Brussels I-bis), the imbalance characterizing any such clauses does not automatically invalidate them, provided that the parties have freely negotiated and consented to them.

The Case

The dispute arose from a supply contract for cladding panels between two individuals (the “Clients”) on one side, and the French company Agora SARL (Agora) and the Italian company Società Italiana Lastre (SIL) on the other. The contract included a forum selection clause stating that “[for] any dispute arising from or related to this contract,” the “Court of Brescia [Italy]” would have jurisdiction, except that SIL retained the right “to bring proceedings against the purchaser before another competent court, in Italy or elsewhere” (the “Clause”).

A dispute arose with respect to contract performance and the Clients brought an action before the Tribunal de Grande Instance of Rennes (France) against Agora and SIL. Agora brought an action on a guarantee against SIL. Invoking the forum selection clause, SIL opposed that action on a guarantee and challenged the French court’s jurisdiction in favor of the Italian court, “on grounds of a lack of international jurisdiction.” The Tribunal rejected the objection, declaring the Clause unlawful under French law due to its unbalanced and imprecise (i.e., purely discretionary) nature, which was contrary to the principle of foreseeability.

The decision was upheld by the Cour d’Appel de Rennes (France), leading SIL to seek review before the French Cour de Cassation, arguing that the Cour d’Appel had misinterpreted Article 25(1) of the Brussels I-bis Regulation, according to which the validity of an agreement conferring jurisdiction should be assessed in light of the law of the Member State whose courts are designated pursuant to that agreement. Hence, SIL argued that the validity of the Clause should be assessed under Italian law – the law of the designated jurisdiction – rather than French law.

The Cour de Cassation sought clarification from the CJEU on the proper legal framework for assessing the validity of an asymmetric forum selection clause. The Court requested a preliminary ruling on three key questions: (i) whether the substantive validity of an asymmetric clause should be assessed autonomously according to EU law criteria or according to the lex fori electi (i.e., the national law of the Member State where the Court designated in the clause sits), and whether the substantial validity of such a clause under Article 25(1) of the Brussels I-bis Regulation strictly refers only to grounds such as fraud, error, violence, and incapacity, (ii) if the assessment is based on EU law, whether asymmetric forum selection clauses remain valid in light of the principle of foreseeability and legal certainty set forth by Article 25(1) of the Brussels I-bis Regulation, and (iii) alternatively, if the lex fori electi applies, which Member State’s law should govern the assessment of the validity of an asymmetric forum selection clause when multiple courts are designated or the party (having the right to choose) has not yet exercised this choice at the time the case is brough before the court.

The Decision

On the first issue, the CJEU clarified that, in light of the Brussels I-bis Regulation’s objective to “unify the rules on conflicts of jurisdiction in civil and commercial matters,” issues concerning the alleged imprecision or imbalance of the asymmetrical forum selection clause must be assessed according to “autonomous criteria” derived from Article 25 of the Brussels I-bis Regulation (i.e., the principles of foreseeability and legal certainty), rather than substantive invalidity criteria defined by Member States’ laws (which typically address issues like fraud, capacity, or error.)

Regarding the second issue, the CJEU clarified that asymmetric forum clauses are not inherently invalid, provided they meet the Brussels I-bis Regulation’s requirements of certainty and foreseeability. Specifically, asymmetric clauses are valid to the extent that:

(i) they are the result of the parties’ free determination (rather than unilateral imposition) and they designate courts in EU Member States or countries parties to the Lugano II Convention;

(ii) they do not undermine the Brussels I-bis Regulation’s objectives of transparency and predictability, ensuring that the court having jurisdiction is identifiable with sufficient certainty based on clear, objective criteria; and

(iii) they comply with the limitations and requirements expressly imposed by the provisions of the Brussels I-bis Regulation concerning insurance, consumer, and employment contracts, and they do not conflict with the rules on exclusive jurisdictions under Article 24 of the Brussels I-bis Regulation.

Conclusion

With this ruling, the CJEU reinforced the central role of contractual autonomy, while clarifying the criteria for assessing the validity of asymmetric forum selection causes. The CJEU confirmed that the evaluation should be based on both the formal criteria set out in Article 25 of the Brussels I-bis Regulation – such as clarity and precision, the designation of courts within EU Member States or Lugano II Convention countries, and compliance with exclusive jurisdiction rules–as well as the substantive criteria, including contractual freedom of the parties, foreseeability and predictability.

Hence, businesses entering international contracts should ensure such clauses are clearly drafted, mutually agreed upon, and aligned with Brussels I-bis Regulation’s principles to avoid enforceability challenges in cross-border disputes.