Updated on 28 September 2026.
Price, performance and liability usually receive most attention in contract negotiations. The jurisdiction clause—the provision specifying the competent court—often appears only on the final page. Yet that agreement may determine the country in which your business must litigate, the language used and how expensive a dispute becomes.
A carefully drafted jurisdiction clause reduces uncertainty, but one standard sentence will not prevent every jurisdictional issue. The agreement must be validly concluded, fit the legal relationship and work when a dispute actually arises. This requires more than entering your own business’s place of establishment.
A jurisdiction clause differs from a choice-of-law clause
A jurisdiction agreement designates a court or courts. A choice of law determines the substantive law applicable to the contract. Choosing Dutch law therefore does not automatically give the Dutch courts jurisdiction. Conversely, a Dutch court may have to apply foreign law.
Make both choices expressly and consistently. In commercial contracts, consider their relationship with arbitration, mediation, escalation arrangements and provisional measures too. A contract prescribing both exclusive court jurisdiction and mandatory arbitration for the same dispute may generate proceedings about the procedure itself.
Which legal framework applies?
For an international agreement choosing the courts of an EU Member State, Article 25 of Brussels I Recast is an important starting point. It imposes requirements concerning consent and form, and generally treats the choice as exclusive unless the parties agree otherwise. It is therefore too absolute to say that a clause omitting the word “exclusive” is always uncertain or non-exclusive.
For a domestic jurisdiction agreement, Article 108 of the Dutch Code of Civil Procedure is among the relevant provisions. Other international relationships may engage, for example, the Lugano Convention, the Hague Choice of Court Convention or national jurisdiction rules. Establish the applicable regime before assessing a clause.
A contract cannot simply remove statutory protection
Freedom to designate a court is not unlimited. Special protective rules apply to consumers, employees and certain insurance disputes, among others. Exclusive jurisdiction also exists, for example for particular disputes about immovable property or the validity of certain company resolutions.
Commercial wording does not suddenly remove a protected party’s protection. Check who the contracting party is, the capacity in which it acts and the type of dispute covered. Even within a group, different agreements may engage different jurisdiction rules.
Was the clause actually accepted?
Establishing that the contract itself was formed is not always enough to establish consent to a jurisdiction clause. In international contracts, form must comply with the applicable regime. Preserve the signed agreement, relevant order confirmations and the version of the conditions available at formation.
In Tilman/Unilever, Court of Justice, 24 November 2022, a jurisdiction clause in conditions accessible through a hyperlink was assessed under the Lugano II Convention. The written contract referred to conditions that could be viewed, downloaded and printed before signature. A separate acceptance checkbox was unnecessary in those circumstances.
That judgment does not automatically make any link at the bottom of an invoice sufficient. Timing, the reference, availability and proof of the applicable version remain important. Where both parties refer to their own conditions, it is also necessary to establish which jurisdiction agreement was actually concluded.
Define the disputes and parties covered
A clause may be limited to performance claims or extend more broadly to disputes connected with the agreement. That distinction can matter for abandoned negotiations, tort claims, warranties or a separate indemnity. Align the scope with the transaction’s risks.
Also consider the entities involved. A shareholder, director, financier or group company is not bound by every jurisdiction clause merely because it is involved in the relationship. In an acquisition, the purchase agreement, shareholders’ agreement and financing documents may contain different provisions. Such fragmentation may lead to parallel proceedings.
Unilateral choice requires extra precision
Some clauses bind one party to a single court while allowing the other to sue elsewhere too. Such asymmetric clauses are not necessarily invalid. In Società Italiana Lastre, Court of Justice, 27 February 2025, the Court clarified the conditions under Article 25 of Brussels I Recast.
Relevant considerations include objective, sufficiently precise criteria identifying the competent courts and limitation to the relevant EU or Lugano states, alongside respect for protective rules and exclusive jurisdiction. An unrestricted reference to any conceivable court worldwide therefore deserves particular attention. Have the wording assessed against the specific countries and parties.
Do you want to litigate in English before the NCC?
The Netherlands Commercial Court may be an option for suitable international disputes. Merely choosing Amsterdam District Court is insufficient. The parties must also expressly agree in writing to proceedings before the NCC in English and satisfy the other requirements.
NCC, 14 April 2020, showed that communications about such a choice may require separate assessment. Include the arrangement clearly and use the current NCC model clause as a starting point, adapted to the contract. Discuss appeals, court fees and provisional measures at the same time.
Look ahead to urgent measures and enforcement
A jurisdiction agreement must also work when urgent intervention is needed. Article 35 of Brussels I Recast may permit provisional measures before a court other than the one deciding the merits. This is not an unlimited opportunity to circumvent the chosen forum; the nature of the measure and international jurisdiction remain decisive.
Also investigate where the other party holds assets. Recognition and enforcement of a judgment differ according to the country and applicable treaty. Our article on attachment of foreign assets addresses the further question of how a claim can actually be secured.
A workable clause follows from a deliberate choice
Before signing, discuss the country, competent court, procedural language, parties involved, scope of disputes and enforceability of a judgment. Record consent and the applicable conditions in a verifiable way. Jurisdiction then becomes part of risk management rather than an afterthought.
Sascha Lang advises on commercial contracts and international disputes. Would you like a jurisdiction clause assessed, or has a dispute arisen over the competent court? Contact us to discuss the contractual arrangements and available procedural routes.
