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It is common practice to insert into contracts unilateral choice-of-court clauses,
granting to one party only the option to refer the dispute to one of several
jurisdictions. Until now, the validity of this type of clauses did not seem
problematic. However, their effectiveness has just been undermined by a
decision from the Cour de cassation (n°11-26.022) dated 26 September 2012.
 

In the case submitted to the Cour de cassation, the forum selection clause
contained in the contract was drafted as follows:
 

"Potential disputes between the client and the bank shall
be subject to the exclusive jurisdiction of the Courts of
Luxembourg. Failing such election of jurisdiction, the
Bank reserves the right to act before the courts of the
client's domicile or any other court of competent
jurisdiction".
 

The clause notwithstanding, one of the parties, a natural
person domiciled in Spain, but not a consumer, filed a
claim before the French courts against both the
Luxembourg bank and the French financial institution
through which it opened its bank account in Luxembourg.

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