Brussels instruments. It is unlikely that a non-unique agreement that nominates two or more courts as having exclusive jurisdiction for both parties (the second type referred to above) would be enforceable as an exclusive agreement under the Recast given that exclusivity requires the jurisdiction of all other competent Member State courts to be excluded for each party.64 59 Brand and Herrup, supra n 22, 17. 60 Hague Convention, Arts 1(1) and 3(a). 61 In the European Union, the Brussels I Recast will apply to all conflicting exclusive agreements in Member States. 62 Xxxxxxx and Xxxxxxxx, supra n 18, para 103. 63 See Ibid, paras 103-104; T Xxxxxxx, Choice of Court Agreements under the European and International Instruments (Oxford University Press, 2013), 144; Brand and Herrup, supra n 22, 43. 64 See supra n 28 and accompanying text. In Meeth v Glacetal, the CJEU interpreted the Brussels Convention in light of the first type of non-unique exclusive clause that nominated two courts 65 in different jurisdictions as having exclusive jurisdiction, depending on which party was claimant. It provided that “If Meeth sues Glacetal, the French courts alone shall have jurisdiction. If Glacetal sues Meeth, the German courts alone shall have jurisdiction”.66 The CJEU ruled that the clause was permissible on the basis that it excluded the “other optional attributions of jurisdiction” under the Brussels Convention67 and because the Brussels Convention recognised “the independent will of the parties to a contract in deciding which courts are to have jurisdiction”.68 The clause differentiated between the parties but did not discriminate against either party,69 in that each had the same rights to claim only in the other party’s home courts and to be sued only in their home courts.70 This is less problematic than the second type of non-unique “exclusive” agreement because it is entirely exclusive from the perspective of each party: each party knows the only jurisdiction in which it can initiate and may be obliged to defend proceedings, and the jurisdiction of other competent Member State courts is excluded for each party. In that sense, a Meeth v Glacetal clause is functionally equivalent to a unique exclusive agreement. For that reason, this type of clause would probably be regarded as effective under the Recast.
