This Practice Note considers asymmetric jurisdiction agreements. It explains what an asymmetric jurisdiction clause is and provides examples of clauses used in contracts. It considers the compatibility of asymmetric jurisdiction clauses with the Hague Convention on Choice of Court Agreements and the Hague Judgments Convention. For guidance on other types of jurisdiction agreement, namely exclusive and non-exclusive jurisdiction clauses, see Practice Notes: • Jurisdiction agreements—exclusive jurisdiction agreements • Jurisdiction agreements—non-exclusive jurisdiction agreements What is an asymmetric jurisdiction clause? Asymmetric jurisdiction clauses (also known as unilateral non-exclusive, hybrid or one-way choice of court agreements) are a specific type of jurisdiction clause used when the parties to the contract have different requirements as to which courts should have jurisdiction to determine a dispute under the contract. Asymmetric clauses typically provide that one party may only bring proceedings in the courts of a specified jurisdiction while the other party may bring proceedings in any court that has jurisdiction. The UK courts have held that such clauses are valid but some other countries have taken a different approach. Consequently,

For Precedent force majeure clauses together with detailed drafting notes, see Precedents: • Force majeure clause • Force majeure and business continuity clause • Force majeure event definition For information on force majeure generally, see Practice Notes: • Force majeure—consequences and contract discharge • Force majeure clause analysis—a practical guide • Force majeure—key and illustrative decisions For information on the related concept of frustration, see Practice Note: Discharge by frustration. For further considerations around alternatives to force majeure, see Practice Note: Drafting for unforeseen events—commercial contracts. For information on dealing with commercial contracts in difficult times, see: Commercial contracts in difficult times—resources—checklist. Legal Issues General comments What to watch out for General considerations Force majeure clauses relieve a party from its contractual obligations on the occurrence of a disruptive event outside that party's reasonable control. Force majeure is only recognised in English law if it is specifically provided for in the terms of a contract, although the doctrine of frustration may be relevant (and the application of this doctrine is typically narrower

‘Evaporation clause’ is an alternative name for a particular type of clause limiting liability. This type of clause is most commonly found in consultant appointments. There are various ways that a contractor or consultant may seek to limit its liability under a construction contract, including the insertion of an express cap on liability and there are, similarly, different approaches that are taken in terms of deciding the level of such caps. Where there is no express agreement set out in a contract that specifically limits the liability of the contractor/consultant, liability will be unlimited. This potentially puts the contractor/consultant’s business at risk if a large claim is made against it that it does not have the resources to meet. The inclusion of a cap gives both parties some comfort: certainty as to the maximum level of claims (for the contractor/consultant) and confidence that claims have a reasonable chance of being met (for the employer). See Practice Notes: Limiting liability in construction contracts and Limitations and exclusions of liability—consultant appointments. One option, in setting a cap

This Checklist identifies the key factors to consider for bringing a contribution claim under the Civil Liability (Contribution) Act 1978 (CL(C)A 1978). For comprehensive guidance on contribution claims under CL(C)A 1978, see Practice Note: Contribution claims under Civil Liability (Contribution) Act 1978—entitlement, scope and ‘same damage’. Considerations/questions Comment Content links When might a contribution claim be relevant? A potential contribution claim can arise in a number of different scenarios wherever two or more parties are liable for the same damage suffered by a claimant.It is relevant, therefore, when the defendant (or prospective defendant) to a claim is likely/found liable, but believes that there is another person or party who should also bear responsibility for the loss caused.It can arise whether the claim is one founded in contract, tort or restitution or a fiduciary based claim.Where the claim is based on contract or tort then the key considerations of joint, several and joint and several liability are key.Note: a contribution claim is not available in respect of a debt (which would include a costs-only

This Checklist outlines some of the Engineer’s duties and authority under the FIDIC Red Book 1999. For an analysis of the Engineer's role under the FIDIC Red and Yellow Books 1999, and the FIDIC Pink Book 2010, see Practice Note: FIDIC contracts (pre-2017 editions)—the role of the Engineer. In relation to the 2017 edition of the Red Book, see Checklist: FIDIC Red Book 2017: Engineer’s duties and authority. • Sub-Clause 1.5 The Engineer’s duty to issue clarification or instruction as to the priority of documents. • Sub-Clause 1.8 The Engineer’s right of access at all reasonable times to copies of the Contract, publications named in the Specification, the Contractor’s Documents (if any), the Drawings and Variations and other communications given under the Contract. • Sub-Clause 1.9 The Engineer’s duty to issue necessary drawings or instructions within a reasonable time. The Engineer’s duty to determine (under Sub-Clause 3.5 and upon receiving notice from the Contractor) time or money incurred as a result of the Engineer’s failure to

One consequence of the international nature of arbitration is the variety of currencies with which parties and tribunals have to deal, often in the same proceedings, where claims may be made (and are often awarded) in various currencies. For more general information about currency in arbitration, see Practice Note: Currency in arbitration. Currency in International Centre for Settlement of Investment Disputes (ICSID) arbitration proceedings Arbitral tribunals in investment arbitrations often have to deal with choice of currency issues, mainly in relation to the fluctuations of the host state’s currency in which the investment was made and damages suffered and/or the non-exchangeable nature of certain currencies. The following cases give examples of how the tribunals in International Centre for Settlement of Investment Disputes (ICSID) arbitrations have dealt with these issues. In Siemens AG v Argentine Republic (ICSID Case No ARB/02/8), the tribunal ruled that compensation should be ordered in US Dollars, and not the currency of the contract, which was Argentine pesos. It was argued that the contract did not

Appointment of process agent The general rule is that proceedings under Irish law must be served within the jurisdiction (ie Ireland). Serving proceedings on a foreign borrower outside of the jurisdiction can be problematic because: • the lender will want to act quickly—serving proceedings outside of the jurisdiction is a lengthy process • the lender will want to avoid any uncertainty—permission of the court to serve outside the jurisdiction is needed in some cases and there is no guarantee that permission will be granted, and • the lender will want to keep costs down—additional legal fees will be incurred in relation to making the application for permission to serve proceedings outside of the jurisdiction and instructing local practitioners to actually serve in the relevant local jurisdiction It is possible for parties to agree in a contract a particular method or place of service, in the event of a claim being started in relation to that contract. This is useful in relation to foreign borrowers where it is usual to provide in the finance documents that

Arbitral tribunals may decide on their own jurisdiction to rule on a matter brought before them (the principle of Kompetenz-Kompetenz) under sections 817 and 819-ter of the Italian Civil Procedural Code (CPC). Under Italian law, there is, however, no provision that enables the granting of anti-suit injunctions. Arbitrable disputes under Italian law CPC, s 806 provides that parties may refer any disputes to be heard by an arbitration tribunal except: • disputes involving inalienable rights • disputes explicitly excluded by the law The CPC also excludes the referral of employment matters to arbitration, except when the arbitration is: • established by the law • provided in the contract, or • provided by an appropriate collective employment contract Challenging the jurisdiction of an arbitral tribunal under Italian law Pursuant to CPC, s 817, para 1, arbitrators have the exclusive competence to ascertain whether they have jurisdiction to rule on the dispute before them under an arbitration agreement. The Italian legislative system fully recognises that the Kompetenz-Kompetenz

The setting aside of a deed, contract, decree or award, usually by legal process.

A misrepresentation is a pre-contractual false statement of fact or law made by one party to a contract (or his agent) to the other that induced that party to enter into the contract.

Date of Agreement ________________________________20[XX] Parties 1 [INSERT], a company incorporated in [INSERT] (registered number [INSERT]) whose registered office is at [INSERT] (Purchaser); and 2 [INSERT], a company incorporated in [INSERT] (registered number [INSERT]) whose registered office is at [INSERT] (Supplier). Background (A) The Purchaser is engaged in the generation of energy at the Site. (B) The Supplier is engaged in the supply of Fuel for use in the generation of energy; (C) The Purchaser wishes to purchase Fuel from the Supplier, and the Supplier wishes to supply Fuel to the Purchaser, subject to and in accordance with the terms of this Agreement 1 Definitions and interpretation 1.1 In this Agreement (including the recitals) the following words and phrases shall have the meaning given to them in this Clause 1: Agreement • means this Agreement including any Schedules to it; Annual Maximum Quantity • means the maximum amount of Fuel to be delivered by the Supplier to the Site in each Contract Year, being [AMOUNT]; Annual Minimum Quantity • means the minimum amount of Fuel to be delivered by the Supplier to the Site in each Contract Year, being [AMOUNT]; Business Day • means any day other than a Saturday, Sunday or a

Interaction of matrimonial and other laws Marriage can affect the rights of the parties in one or more of the following ways: Matrimonial contract and property regimes English law has always recognised that the law of matrimonial domicile may bring with it foreign concepts of matrimonial contract and matrimonial property regimes. Whether such a regime applies only to movables or also to immovables is less clear. In June 2016, the EU introduced regulations on the recognition of matrimonial regimes for marriage and registered partnerships. Both mixed sex and same sex marriage and registered partnerships can be subject to matrimonial property regimes. The registration of a marriage or a registered partnership can therefore have an effect on property rights. See Practice Note: Forced heirship and succession law — Matrimonial property regime for more information. Taxation Spouses and civil partners are given favourable tax treatment in many jurisdictions, with either exemptions or reliefs in relation to taxes on death or upon lifetime gifts, and also in relation to capital gains tax (CGT). Succession