French Supreme Court Rules on Validity of Asymmetric Jurisdiction Clauses After Lastre

On 17 September 2025, the French Supreme Court for private and criminal matters (Cour de cassation) delivered four judgments ruling on the validity of jurisdiction clauses, including in the Società Italiana Lastre SpA (SIL) v. Agora SARL case which the court had referred to the CJEU. The four judgments gave the opportunity to the Cour de cassation to apply the ruling of the CJEU, but also to interpret it.

Background

Readers will recall that in Case C‑537/23, Società Italiana Lastre SpA (SIL) v. Agora SARL, the CJEU ruled that

an agreement conferring jurisdiction pursuant to which one of the parties thereto may only bring proceedings before the sole court that it designates whereas it permits the other party to bring proceedings before, in addition to that court, any other competent court, is valid, in so far as, first, it designates courts of one or several States which are either Members of the European Union or parties to the [2007 Lugano Convention],  secondly, it identifies objective factors which are sufficiently precise to enable the court seised to ascertain whether it has jurisdiction, and, thirdly, it is not contrary to the provisions of Articles 15, 19 or 23 of that regulation and does not derogate from an exclusive jurisdiction pursuant to Article 24 thereof.

In this case, the relevant jurisdiction clause was included in a supply agreement, and provided:

the court of Brescia [(Italy)] will have jurisdiction over any dispute arising from or related to this contract. [SIL] reserves the right to bring proceedings against the purchaser before another competent court in Italy or elsewhere.

The first requirement laid down by the CJEU seemed to mean that if a clause was drafted in such a way that it could be interpreted as granting jurisdiction to courts outside the EU/Lugano judicial area, it was not sufficiently precise and thus was invalid. But the CJEU fell short of saying it. As a result, commentators disagreed on whether the relevant clause was actually valid (see here, here and here).

Far from settling the issue, Lastre had given rise to new issues of interpretation, that national courts would have to address, starting with the referring court, the Cour de cassation (which rejected requests to refer further questions to the CJEU on the meaning of the judgment).

Was this clause valid, then?

Effet Utile and Narrow Interpretation

The Cour de cassation rules that the CJEU left the interpretation of asymmetric jurisdiction clauses to national courts, and that, pursuant to Recital 19 of the Preamble to the Brussels I bis Regulation and paragraph 56 of the judgment of the CJEU in Lastre, this should be done by respecting the will of the parties, including by giving it an effet utile.

S’agissant de la réserve exprimée au point 60 de son arrêt, la Cour de justice renvoie cependant au juge national le soin d’interpréter la clause, le cas échéant afin de lui faire produire un effet utile pour se conformer à l’autonomie de la volonté des parties dont le respect nécessaire est aussi rappelé au considérant 19 du règlement Bruxelles I bis et au point 56 de l’arrêt.

In this context, it seems that the Court understands giving an effet utile to the clause as meaning that the clause should be interpreted in way which validates it rather than in a way which does not.

The Court then rules that, where the contractual relationship does not have any  objective connection with a third State, a jurisdiction clause providing that any ‘competent court’ has jurisdiction’ must be interpreted as referring only to courts of the Member States or of States parties to the Lugano Convention so that it meets the test of the CJEU. In Lastre, the Cour de cassation rules that in the absence of any objective connection of the contract with a third State, the clause should be interpreted as referring to ‘competent courts’ as designated by the Brussels I bis Regulation or the Lugano Convention, and should thus be found to be valid. As the result, the Court declines the jurisdiction of French courts.

The judgment suggests that the Cour de cassation considered that it was faced with two options. The first was to find that the geographical scope of the clause was not limited, and that it thus, on the face of it, granted jurisdiction to any court of a third State which might retain jurisdiction under its own jurisdictional rules. But such a clause would not meet the requirements laid down by the CJEU, and would have to be invalidated. The second option was to narrow the interpretation of the clause in order to validate it and to find that it only granted jurisdiction to the courts of EU/Lugano States. The Cour de cassation chose the second option and ruled that, in effect, the effet utile principle entails a validation principle.

Additional Role for Objective Criteria

The effet utile interpretation of the Cour de cassation was tested in one of the four cases which involved African parties only. An Egyptian bank had lent money to a Cameroon company. The repayment of the loan was secured by a personal security issued by an individual based in Cameroon. The loan provided for the exclusive jurisdiction of the commercial court of Paris (which confirms that French courts are an attractive forum for parties from francophone Africa), but the security contract provided:

Without prejudice to the right of the beneficiary or creditors to bring legal proceedings before the courts in whose jurisdiction the assets of the caution are located, the caution irrevocably accepts that any dispute relating to this deed of cautionnement shall be brought before the Commercial Court of Paris.

Clearly, it was difficult to consider that the parties only contemplated European courts when they drafted this clause.

Nevertheless, the Cour de cassation rules that the clause satisfies the Lastre test, because the clause relied on an objective criterion, namely the location of the assets of the debtor, to grant jurisdiction, and that this suffices to validate the clause. In this case scenario, it is unnecessary to rely on the rules of the European law of jurisdiction to determine the competent courts.

— H/T: Marie-Elodie Ancel