It is common in international contracts to find a choice of jurisdiction clause whereby the parties have agreed on trial in a chosen forum. Such an agreement may take one of two different forms: an exclusive jurisdiction agreement and a non-exclusive jurisdiction agreement. Non-exclusive jurisdiction agreements are not infrequently found in practice. This article will examine what the obligations are under such an agreement, how they differ from those under an exclusive jurisdiction agreement, and how the courts determine whether an agreement is exclusive or non-exclusive. It will go on to consider the effect that the law gives to a non-exclusive jurisdiction agreement and, insofar as effect is given to such an agreement, how this differs from that given to an exclusive jurisdiction agreement. It is equally important then to consider the effect that is not given to a non-exclusive jurisdiction agreement when compared with an exclusive jurisdiction agreement. Finally, some conclusions will be reached on the effect that should be given to a non-exclusive jurisdiction agreement, and suggestions will be made for reform of the law so that it gives effect to the parties’ agreement.

These can best be understood by looking first at the obligations under an exclusive jurisdiction agreement. An exclusive jurisdiction agreement is “one which imposes a contractual obligation on one or more parties to litigate in the stated jurisdiction”.1 This has a positive aspect in that the parties are agreeing on trial in the chosen forum. Moreover, having done so, the parties implicitly agree not to object to the jurisdiction of that forum.2 But, equally importantly, it also has a negative aspect. In the situation where there is an agreement providing for the exclusive jurisdiction of the English courts, the parties promise not to invoke a foreign jurisdiction;3 and, if one of the parties does so, this is a breach of their agreement. In contrast, a non-exclusive jurisdiction agreement, “even though creating no contractual obligation to sue only in England, is a contractual

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