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Asymmetric Agreement Definition

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This is a useful decision for financial institutions. Although there have been obervative decisions indicating that asymmetric jurisdiction clauses have benefited from Brussels` anti-torpedo rules, such as Perella Weinberg Partners UK LLP -anr/Codere SA [2016] EWHC 1182 (Comm), this is the first EU decision that has been addressed directly on this point. Applying asymmetric clauses can be difficult. Some legal systems give the impression that they depart from the fundamental principle of agreement between the parties. In China, for example, such clauses are prohibited. Users of asymmetrical clauses should be aware of potential difficulties in order not to be forced into litigation in an unknown or undesirable forum. Asymmetrical jurisdictional asymmetry clauses (also known as non-exclusive, hybrid or unilateral jurisdictional agreements) are a specific type of jurisdiction clause that is used when each contracting party has different requirements that should be competent to adjudicate disputes under the contract. As a general rule, asymmetric clauses provide that one party can only bring a legal action in the courts of a particular court, while the other party can bring an action with any competent court. Cranston J found that an asymmetric jurisdiction clause was an exclusive jurisdiction clause for the purposes of the Brussels overhaul. Cranston felt that this was not an English law, but a self-contained interpretation of the Brussels overhaul. The position of Russian law is complex and the application of asymmetric clauses can be problematic.

In a case widely reported in 2012, the Office of the Supreme Court of Arbitration (then high court for commercial cases) decided that a clause, which would give only one party the opportunity to violate Russian law in addition to the standard arbitration clause that binds the two parties, for it would give one party an unfair advantage over the other, in violation of the principle of equality of arms (see resolution of 19 June 2012 no 1831/12 in case 140-49223/11-112-40). As a result, the court allowed both parties to file claims in Russian courts. In other words, the asymmetric clause was interpreted as symmetrical. Other jurisdictions, before and since, have taken different approaches to this issue. In some cases, such asymmetrical clauses are not considered problematic by the Tribunal, while in others, the courts have followed the advice of the Office of the Supreme Court of Arbitirasch. However, Russian law does not seem to require a simple symmetrical arbitration agreement. Alternative dispute resolution agreements, in which both parties have the option of referring a dispute either to a court or to an arbitral tribunal, appear to be valid and applicable under Russian law. Similarly, a clause that one party can refer to disputes only to arbitration, but the other is only final, has been validated. The seller (Sony Ericsson Mobile Communications Rus LLC) has entered into a general distribution agreement with the buyer (CJSC Russian Telephone Company) for the supply of mobile phones and accessories.