Romania: Interpretation and Effects of Optional Jurisdiction Agreements in International Disputes

On these instruments, see Gaudemet-Tallon (2015), pp. 169 et seq., paras 153 et seq.; Magnus (2016), pp. 593 et seq.; Garcimartín (2015), pp. 277 et seq. See also Briggs (2008).

The exhaustive character of the formal requirements stipulated in the Regulation results clearly from the ECJ’s jurisprudence: often, the Court has stated that Member States do not enjoy the freedom to dictate formal validity requirements supplementary to those provided in Article 25 of the Brussels I bis Regulation (ex Art. 17 Brussels Convention, Art. 23 Brussels I Regulation). See for example, ECJ, Case 150/80 Elefanten Schuh v Jacqmain [1981] paras 25–27; see also ECJ, Case 159/97 Trasporti Castelletti Spedizioni Internazionali SpA v Hugo Trumpy SpA [1999] para 38. Oprea (2017).

See Article 24 of the Brussels I bis Regulation.

See Sections III, IV and V in the Brussels I bis Regulation.

See Briggs (2008), paras 7.12 and 7.25. Also, Merrett (2009), p. 545.

On this rule and the corresponding Recital 20 from the Preamble of Brussels I bis Regulation, see Herranz Ballesteros (2014), pp. 291 et seq.; Forner Delaygua (2015), pp. 394 et seq.

Hague Convention of 30 June 2005 on Choice of Court Agreements, available on the site www.​hcch.​net. On 4 and 5 December 2014, the Council of the EU adopted the decision on the ratification, on behalf of the European Union, of The Hague Convention; on 1st October 2015, the Convention entered into force, being applicable now in all EU Member States, as well as in Mexico, Singapore and Montenegro. Denmark and United Kingdom also separately ratified the Convention.

See Art. 1(1), Art. 2 (1) and (2), Art. 26(6)(a) of The Hague Convention.

The Code entered into force on the 15th February 2013. On the new text, see Popovici (2013), pp. 81–98; Păncescu (2013), pp. 679 et seq.; Leș (2013), pp. 1351 et seq.

Normally, the substantive validity requirements should be established according to the law designated by the Romanian private international law norms. Choice of court agreements are conventions generating obligations but, because they are expressly excluded from the scope of the Rome I Regulation (see Art. 1(2)(e), Heinze 2011, p. 586), the correlative private international law norms would be those established in the Civil Code for juridical acts (Art. 2637–2638). Nevertheless, a different position can also be sustained. Given the procedural effects of these agreements, they could be governed by the lex fori (normally applicable for procedural aspects); this solution is difficult to accept, since the lex fori will be applied not only to those procedural aspects, but specially to substantive aspects (like the existence of a real free and informed consent). The doctrine did not give a solution to this. In our opinion, a distinction must be made: for the strict procedural aspects, the lex fori should be applied and for purely substantive aspects, lex obligations. For the parties’ legal capacity, lex personalis must apply.

Art. 1(1) of The Hague Convention: “This Convention shall apply in international cases to exclusive choice of court agreements concluded in civil or commercial matters”. Beaumont (2009), p. 134; Hartley and Dogauchi (2007), para 106. Optional and unilateral jurisdiction agreements are not within the scope of The Hague Convention.

Keyes and Marshall (2015), p. 349.

See Keyes and Marshall (2015), p. 350; Ahmed (2017), p. 4.

Keyes and Marshall (2015), pp. 350 et seq.

The other texts in the Convention were drafted taking into account this exclusive character of jurisdiction agreements. Article 5 stipulates that the court or courts of a contracting State designated in the exclusive choice of court agreement shall have jurisdiction and cannot decline to hear the case on the ground that the dispute should be solved by another (foreign) court. Also, according to Article 6, any non-chosen court shall suspend or dismiss proceedings to which an exclusive choice of court agreement applies. These later rules could not be applied in case of non-exclusive jurisdiction agreements.

For details, see Hartley and Dogauchi (2007), paras 40, 47–48, and 104–105. Any agreement which does not exclude the jurisdiction of courts from all other states (excepting for the unique chosen court/courts of a contracting State) is regarded as non-exclusive, notwithstanding that the parties may have characterised their agreement as being exclusive or may have drafted their agreement as exclusive, but only for one party.

See Magnus (2016), pp. 656–657, para 143.

Magnus (2016), p. 656, para 143.

ECJ, Case 24/76 Estasis Salotti [1976] para 7; ECJ, Case 25/76 Segoura v Bonakdarian [1976] para 6: “the effect of the conferment of jurisdiction by consent … is to exclude both the jurisdiction determined by the general principle laid down in Article 2 and the special jurisdictions provided for in Articles 5 and 6 of the Convention”.

Briggs (2008), pp. 110–111, para 4.09: “an agreement for the exclusive jurisdiction of a court is an agreement that the nominated court, and only the nominated court, will be seised with jurisdiction by whichever party takes the role of claimant”.

A similar interpretation is counseled as regards the 2005 Hague Convention: according to the Hartley and Dogauchi Report, “in order to be covered by the Convention, the agreement must be exclusive irrespective of the party bringing the proceedings” (para 106).

See the position of ECJ in the Meeth v Glacetal judgment, in which the Court interpreted a reciprocal choice of court agreement, depending on which party was claimant, as being exclusive. See also Keyes and Marshall (2015), pp. 355–356, analysing the incertitude that exists about the possible qualification of non-unique jurisdiction agreements as exclusive.

See Magnus (2016), p. 657, para 144. Contra: Briggs (2008), p. 115, para 4.16: “attempts to short-circuit the analysis of what the parties actually agreed with presumptions about what they must rationally have wanted, or must have understood about the nuances of meaning, are insecure and unreliable […] The answer is that the court must ascertain the meaning of words used, assuming commercial sense on the part of contracting parties, and without undue assistance or presumption in favour of one or another conclusion: did they agree that the proceedings in question could or would not be brought?”.

The doctrine refers to the clauses that do not fit into the “fully, bilaterally and immediately exclusive type”—see Briggs (2008), p. 116, para 4.19.

Keyes and Marshall (2015), pp. 345–378; Draguiev (2014), p. 37.

According to Briggs (2008), p. 111, para 4.09: “an agreement for non-exclusive jurisdiction of a court is an agreement that the nominated court may be seised with jurisdiction by which party is the claimant, but does not necessarily involve an immediate promise that no other court will be asked to exercise jurisdiction.”

For the resolution of the possible conflicts, see Garnett (2013), pp. 361 et seq.

Asymmetrical jurisdiction agreements are frequent in banking contracts (but are not limited to this category)—Fentiman (2013), p. 24; Draguiev (2014), p. 23.

The expression “civil and commercial matters” is to be interpreted according to the provisions of the Brussels I bis Regulation and to the ECJ’s corresponding case-law.

Magnus (2016), p. 597, para 14.

Magnus (2016), p. 657, para 144; Forner Delaygua (2015), p. 396.

According to article 1068(1) CPC, in the absence of contrary stipulation, the jurisdiction agreement is exclusive. Hence, indirectly, the Code recognizes the efficacy of optional choice-of-court agreements. Parties are free to conclude a contract in which they stipulate through a jurisdiction agreement the competence of one or more courts in case of dispute, or the possibility of one party to sue in more than one country, while the other is bound by the jurisdiction of a single court.

See the Coreck judgment (ECJ, C-387/98 [2000] para 15): “It follows that the words have agreed in the first sentence of the first paragraph of Article 17 of the Convention cannot be interpreted as meaning that it is necessary for a jurisdiction clause to be formulated in such a way that the competent court can be determined on its wording alone. It is sufficient that the clause states the objective factors on the basis of which the parties have agreed to choose a court or the courts to which they wish to submit disputes which have arisen or which may arise between them. Those factors, which must be sufficiently precise to enable the court seised to ascertain whether it has jurisdiction, may, where appropriate, be determined by the particular circumstances of the case”. See also ECJ, C-222/15 Hoszig [2016] para 43: “As regards the precision of the content of a jurisdiction clause, in relation to determining a court or courts of a Member State to settle any disputes which have arisen or which may arise between the parties, the Court has held, with regard to Article 17 of the Brussels Convention, that the terms of that provision cannot be interpreted as meaning that it is necessary for such a clause to be formulated in such a way that the competent court can be determined on its wording alone. It is sufficient that the clause states the objective factors on the basis of which the parties have agreed to choose a court or the courts to which they wish to submit disputes which have arisen or which may arise between them. Those factors, which must be sufficiently precise to enable the court seised to ascertain whether it has jurisdiction, may, where appropriate, be determined by the particular circumstances of the case”.

ECJ, Case C-269/95 Benincasa v Dentalkit Srl [1997] para 29; ECJ, Case C-159/97 Trasporti Castelletti [1999] para 48.

See, for example, the Recital 19 of the Preamble (having an identical correspondent in the Recital 14 of the Preamble of the Regulation 44/2001) stating that: “The autonomy of the parties to a contract, other than an insurance, consumer or employment contract, where only limited autonomy to determine the courts having jurisdiction is allowed, should be respected subject to the exclusive grounds of jurisdiction laid down in this Regulation”.

ECJ, Case 23/78 Meeth v Glacetal Sarl [1978] para 8; ECJ, Case 387/98 Coreck Maritime [2000] para 14: “if the purpose of Article 17 of the Convention is to protect the wishes of the parties concerned, it must be construed in a manner consistent with those wishes where they are established. Article 17 is based on a recognition of the independent will of the parties to a contract in deciding which courts are to have jurisdiction to settle disputes falling within the scope of the Convention, other than those which are expressly excluded pursuant to the fourth paragraph of Article 17”; ECJ, Case 322/14 El Majdoub [2015] para 26: “the provisions of Article 23(1) of the Brussels I Regulation clearly indicate that its scope is limited to cases in which the parties have ‘agreed’ on a court. As appears from Recital 11 in the Preamble to that Regulation, it is that consensus between the parties which justifies the primacy granted, in the name of the principle of the freedom of choice, to the choice of a court other than that which may have had jurisdiction under that Regulation”.

See Recital 20 from the Preamble: “Where a question arises as to whether a choice-of-court agreement in favour of a court or the courts of a Member State is null and void as to its substantive validity, that question should be decided in accordance with the law of the Member State of the court or courts designated in the agreement, including the conflict-of-laws rules of that Member State”. On this rule, see Forner Delaygua (2015), pp. 396 et seq.

See Scherer and Lange (2013), p. 1, evoking the solution of the applicability of the conflict of laws rules from the State of the designated court. See also Ancel et al. (2013), para 8; Ancel and Cuniberti (2013), p. 8; Forner Delaygua (2015), p. 395, who argues that the issue of unilateral/asymmetrical jurisdiction agreements should normally be placed into the “substantive validity” category; nevertheless, the author recognizes that, given the problems generated by this solution, a broader interpretation and a more extended application of the category “admissibility” are recommended, to cover also this type of clause (as for the admissibility of optional choice of court agreements).

ECJ, Case C-269/95 Benincasa v Dentalkit Srl [1997]. See more recently ECJ, Case C-543/10 Refcomp [2013].

On this, see Oprea (2016), pp. 33–46.

Ancel et al. (2013), p. 5, para 8. These authors introduce a distinction: as long as the subject-matter of the dispute falls within the scope of the European Regulation and the parties choose through the clause courts from two or more Member States, this text should be taken into consideration. However, when the choice of court agreement does not concern the Member States’ courts, the application of the national law (the solutions from the Civil Procedure Code and the local case-law) could be taken into consideration.

This is actually what the French Supreme Court tried to do in the Rothschild judgment: it justified its position not by applying directly the French national law, but by taking into consideration the objectives of the Regulation—see Ancel and Cuniberti (2013), p. 8.

See Magnus (2016), p. 623, para 73. In another context, the same author argued that “a jurisdiction agreement lacks the necessary precision if the choice of the competent court is entirely left at the claimant option”— see Magnus (2016), p. 622, para 71 and the extra references cited by this author. See also Herranz Ballesteros (2014), pp. 302 et seq.: according to this author, the previous case-law of the CJEU retains its validity. In some cases, there are opinions of the CJEU touching not only the purely formal aspects, but also the substantive aspects (the existence of the agreement); so far as the procedural rules contained in the Regulation cover also the problem of the conclusion of the agreement (existence of a contract), there is no longer any need to apply national law. Hence, the problem of the potestativity of the agreement should not be considered to be covered by the reference to national law. Previously, the French doctrine sustained also a restrictive interpretation: a clause which would state in favour of a party an unlimited option/the possibility to seise any court could not be validated in the light of the Regulation—see Gaudemet-Tallon (2010), para 132: “Il faut quand même que la clause désigne directement ou permette indirectement de désigner le ou les tribunaux compétents: ainsi, une clause abandonnant à une partie le choix de n’importe quelle juridiction ne relève pas de l’Article 17 (C) ou 23 (R)”.

See Art. 25(4) of the Regulation.

In The Hague Convention, see Art. 5(2): “A court that has jurisdiction under paragraph 1 shall not decline to exercise jurisdiction on the ground that the dispute should be decided in a court of another State”.

Magnus (2016), p. 658, para 146; Garcimartín (2015), p. 301, para 9.84.

On this, see Garcimartín (2015), p. 301, para 9.84. In The Hague Convention, Article 6 clearly states that: “A court of a Contracting State other than that of the chosen court shall suspend or dismiss proceedings to which an exclusive choice of court agreement applies unless…”. The Brussels I bis Regulation is vaguer as regards this derogative effect, nuanced only as regards parallel proceedings: in fact, taking into account Article 31(2), a non-designated court must first stay proceedings (if requested and if the chosen court has been seised); it has to decline jurisdiction only when the designated court has accepted its jurisdiction.

The Hartley and Dogauchi Report (2007) offers two examples of such clauses: “The courts of State X shall have non-exclusive jurisdiction to hear proceedings under this contract”; “Proceedings under this contract may be brought before the courts of State X, but this shall not preclude proceedings before the courts of any other State having jurisdiction under its law” (para 109).

For another example, see Hartley and Dogauchi Report (2007), para 109: “Proceedings under this contract may be brought before court A in State X or court B in State Y, to the exclusion of all other courts”.

This solution can be deduced from the interpretation of the legal provision of the Civil Code devoted to the alternative obligations—see Vasilescu (2017), p. 14; Pop et al. (2015), p. 457, para 408.

See Draguiev (2014), p. 24: “The options ‘crystallize’ at this point and the sole, mandatory exclusive place for settlement of the dispute is reduced to the one where the claim has been brought”.

If the respondent appears before the court and pleads the case on its merits, he tacitly accepts a prorogation of the jurisdiction of the seised court (see Art. 26 of the Brussels I bis Regulation and the corresponding case-law of the ECJ).

See Article 19(1) of the Regulation: The choice of court agreement is valid if (1) it is entered into after the dispute has arisen; 2) it gives the consumer additional options of courts having jurisdictions or 3) it designates as having jurisdiction the courts of the Member State in which both the consumer and the professional are habitually resident at the time of the conclusion of the agreement.

Although national law may be applied to substantive issues, the intervention of some restrictive solutions (such as the one from French law), which would censor these optional clauses stipulated for the benefit of the consumer, would contradict the letter and spirit of the legal text (the admission of autonomy of will in a sense of favour, to facilitate the consumer’s access to justice) and we do not believe that it can be accepted. However, the issue at stake is not of high importance here, because in practice this kind of clause will rarely be found in contracts (probably standardized and written by a professional, thus best suited to his own interests).

Article 15(2) of the Brussels I bis Regulation validates choice of court agreements (prior to the occurrence of the dispute) when they “enable the policyholder, the insured or a beneficiary to bring proceedings in courts other than those indicated” by the protective rules of jurisdiction from Section 3.

Article 23(2) of the Brussels I bis Regulation provides that the mandatory rules of jurisdiction established by the legislator may only be derogated from by agreements which allow “the employee to bring proceedings in courts other than those indicated in Section V of the Regulation”.

See indirectly the Jenard Report (1979), p. 33. See Heiss (2016), p. 429, para 1; Mankowski and Nielsen (2016), p. 522, paras 22–23; Esplugues Motta and Palao Moreno (2016), p. 557, para 8.

On this rule, see Mankowski and Nielsen (2016), pp. 524–528, paras 30–42.

See Report Schlosser (1979), p. 119, para 161; Mankowski and Nielsen (2016), p. 527, para 37.

Taking into account the rules of international civil procedure of the Member State of the seised court would allow parties more easily to elude the mandatory rules of the Regulation, provided that the laws of the Member States (beyond the divergences between them) do not guarantee the same standards of protection. See Magnus (2016), p. 609, para 37.

Schlosser (1979), para 176.

Not contesting the jurisdiction of the seised court is interpreted as a tacit acceptance of jurisdiction; the prorogation results from the procedural behaviour of the defendant—see Article 26 of the Regulation.

See Fentiman (2010), p. 465; Dickinson (2010), p. 47.

Garcimartín (2015), p. 280, para 9.13.

Gaudemet-Tallon (2015), pp. 144–145, para 131.

See Magnus (2016), p. 610, para 37a.

See Para 153 final of the Opinion: “Thus, where the new Lugano Convention contains articles identical to Articles 22 and 23 of Regulation No 44/2001 and leads on that basis to selection as the appropriate forum of a court of a non-member country which is a party to that Convention, where the defendant is domiciled in a Member State, in the absence of the Convention, that latter State would be the appropriate forum, whereas under the Convention it is the non-member country”.

See Garcimartín (2015), p. 281, para 9.14.

See Opinion 1/03 from 7 February 2006 in which the ECJ recognized the exclusive competence of the EU for the conclusion of international agreements with third States in the field of jurisdiction, recognition and enforcement of judgments in civil and commercial matters.

See Ratković and Zgrabljić Rotar (2013), pp. 261–263. Fentiman (2016), p. 716, para 10: although it does not expressly refer to procedures initiated under optional choice of court agreements, the rule contained in Article 29 of the Regulation is fully operational in their case.

On this rule, see Fentiman (2016), pp. 713 et seq.

Magnus (2016), p. 665, para 163a.

See Ahmed (2017), p. 19.

Fentiman (2016), pp. 752–753, para 17. Contra Garcimartín (2015), p. 341, para 11.54.

The solution is a new one in Regulation 1215/2012. Before the entry into force of this text, Member States’ courts took into consideration their own rules of international civil procedure [in Romania, Article 1075 CPC, on which see Păncescu 2013, pp. 696–697; Leș 2013, pp. 1359–1361; Deleanu et al. 2013, pp. 758–760, para 287].

If the foreign (non-EU) judgment was pronounced and is likely to be recognized and enforced in the forum state, the EU seised court shall dismiss the proceedings—Art. 33(3) of the Regulation.

See Article 33(1)(a), (b). See also Recital 24: “When taking into account the proper administration of justice, the court of the Member State concerned should assess all the circumstances of the case before it. Such circumstances may include connections between the facts of the case and the parties and the third State concerned, the stage to which the proceedings in the third State have progressed by the time proceedings are initiated in the court of the Member State and whether or not the court of the third State can be expected to give a judgment within a reasonable time. That assessment may also include consideration of the question whether the court of the third State has exclusive jurisdiction in the particular case in circumstances where a court of a Member State would have exclusive jurisdiction”.

See ECJ, C-159/02 Turner v Grovit [2004]: “The Brussels Convention … is to be interpreted as precluding the grant of an injunction whereby a court of a Contracting State prohibits a party to proceedings pending before it from commencing or continuing legal proceedings before a court of another Contracting State, even where that party is acting in bad faith with a view to frustrating the existing proceedings”. The Turner judgment was confirmed by the West Tankers judgment (ECJ, Case C-185/07 [2009]): the anti-suit injunction cannot be used in the European area to sustain the efficacy of an arbitration agreement.

See Magnus (2016), p. 666, para 166.

Moreover, in case of optional choice of court agreements, the parties only establish the right for one or both parties to seise certain courts (and not also an obligation, whose violation could be sanctioned).

Cuniberti and Requejo (2010), pp. 15 et seq.

See Cuniberti and Requejo (2010), p. 18.

See Article 45 of the Brussel I bis Regulation.

See Magnus (2016), p. 665, para 165. See also the Gothaer judgment (ECJ, Case C-456/11 [2012]), in which the Court of Justice of the European Union ruled that “Articles 32 and 33 of Regulation No 44/2001 must be interpreted as meaning that the court before which recognition is sought of a judgment by which a court of another Member State has declined jurisdiction on the basis of a jurisdiction clause is bound by the finding – made in the grounds of a judgment, which has since become final, declaring the action inadmissible – regarding the validity of that clause” (para 43).

Given the fact that the 2005 Hague Convention only applies to the circulation of the judgments given by courts (of a Contracting State) designated in an exclusive choice of court agreement, it will not be applicable in the discussed situation.

On these rules, see Păncescu (2013), pp. 734–741; Leș (2013), pp. 1378–1380; Deleanu et al. (2013), pp. 783–787, para 302.

D’Avout (2015), p. 995.

See Droz and Gaudemet-Tallon (2001), para 51.

See Magnus (2016), p. 659, para 148.

See Keyes and Marshall (2015), pp. 366 et seq.; Draguiev (2014), p. 37.

See, for example, judgments NB Three Shipping Ltd v Harebell Shipping Ltd [2005] 1 Lloyds Rep 509; Law Debenture Trust Corp. PLC v. Elektrim Finance BV, Elektrim SA, Concord Trust [2005] EWHC 1412 (Ch), Mauritius Commercial Bank Ltd v Hestia Holdings Ltd & Sujana Universal Industries Ltd [2013] EWHC 1328, cited by Keyes and Marshall (2015), pp. 373–377; Draguiev (2014), p. 26.

See Perrella and Massutti (2013), who evoke two recent decisions of the Court of Cassation (judgment 5705, 11th April 2012, Grinka in liquidazione v Intesa San Paolo, Simest, HSBC), respectively of the Court of Appeal of Milano (22nd of September 2010, Sportal Italia v Microsoft Corporation). See also Lupoi, in this collection.

The relationship between the national law and the European law is not clear in the judgment. The Court refers to the object and the finalities of Article 23, but the solution is strongly influenced by the (domestic) French conception of potestativity. Despite the limitation contained (the bank could seise “any court having jurisdiction”, and not any court in general), the clause in the litigation was widely interpreted and treated with high severity.

Cass 1 Civ, 7th October 2015, No 14-16.898. The asymmetrical jurisdiction agreement declaring that one of the parties enjoys “the right to institute proceedings against Reseller in the courts having jurisdiction in the place where Reseller has its seat or in any jurisdiction where a harm to A. is occurring” was validated. The argument was that this agreement made possible the identification of the courts that could be seised for eventual disputes between the parties regarding the performance or the interpretation of their contract and, thus, met the necessary requirement of predictability.

See for example Supreme Court of Bulgaria, judgment 71 from 2nd September 2011, Case 1193/2010, in which, with arguments similar to those in the Rothschild judgment, the court invalidated a mixed arbitration and jurisdiction agreement stipulated for the benefit of one of the contracting parties—case reported by Cuniberti (2012).

Fentiman (2013), p. 27.

For purely internal disputes, the situation is different, the admissibility of the asymmetrical jurisdiction agreements has been indirectly consecrated: see for example the High Court of Justice, decision no 4613 from 27th May 2011 reported in (2011) Dreptul 6: 221: “if the choice of court agreement was stipulated for the benefit of the claimant, it has the freedom to bring proceedings in front of the conventionally designated court or in front of any other legally competent court”. In the doctrine, see Leș (2013), p. 211; Deleanu (2013), p. 677. There is no reason to believe that this position will not be followed in international cases.

In general, arguing that asymmetrical jurisdiction agreements are compatible with the Brussels I bis Regulation’s provisions, see Ahmed (2017), p. 16.

Arguing that at the European Union level, an asymmetrical jurisdiction agreement stipulating one party’s right to seise “any other court having jurisdiction” is not discretionary, because it permits with reasonable certainty and clarity an anticipative determination of the courts in front of which the proceedings may be brought, see Ahmed (2017), p. 13.

See for example the Recital 18 of the Preamble of the Brussels I bis Regulation; see also the Jenard-Moller Report, para 60 (OJ 1990 C-189/77) and the Cruz-Real-Jenard Report, para 27 (OJ 1990 C-l 89/47).

See Article 15(2) for insurance contracts, Article 19(2) for consumer contracts, Article 23(2) for employment contracts.

See Article 14 for insurance contracts, Article 18(2) for consumer contracts, Article 22(2) for employment contracts.

See Bariatti (2015), p. 208, para 5.57 (insurance contracts); indirectly, Bonomi (2015), p. 236, para 6.85 (consumer contracts); Esplugues Motta and Palao Moreno (2016), p. 557, paras 6–8 (employment contracts); Mankowski and Nielsen (2016), pp. 516 and 522, paras 5 and 23; Lazic (2014), p. 111.

Fentiman (2016), p. 750, para 7; Ratković and Zgrabljić Rotar (2013), p. 265.

On this, see Mankowski (2016), pp. 932 et seq., paras 91 et seq.; Fitchen (2015), pp. 474 et seq., paras 13.372 et seq.

The recast of the Regulation no 44/2001 and the adoption of The Hague Convention were some missed opportunities to adopt such rules. Particularly, as regards the last instrument, Switzerland’s proposal to include the unilateral choice of court agreements within the scope of the Convention was rejected during the diplomatic proceedings.