In Borrelli, the Commercial Court was faced with a number of applications.4 In the first place, the twenty-third defendant to the claim applied to set aside an order granting the claimants permission to serve process on said defendant out of the jurisdiction and, further, sought an order staying the English proceedings against it. The background to the applications was quite complicated; it suffices to say that the principal claimants were investment funds which made—or wished to make, given that there was an application to amend the claim form also before the court—claims in the tort of conspiracy and of various equitable wrongs against some or all of the defendants. Insofar as those claims concerned the twenty-third defendant, it argued that said claims fell within the scope of one or other jurisdiction clauses which, for the purposes of Art.6 of the 2005 Hague Convention, conferred exclusive jurisdiction on the courts of Luxembourg.5 The first jurisdiction clause, found in documentation referred to as the “Subscription Agreements”, was a typical exclusive jurisdiction clause;6 the second jurisdiction clause, found in documentation referred to as the “Conditions”, was asymmetric in nature.7

In essence, and insofar as material for the purposes of this note, that left the court with two questions to consider. Both questions concerned the correct interpretation of Art.3(a) of the 2005 Hague Convention. First: in deciding if claims fall within the scope of an exclusive jurisdiction clause for the purposes of the 2005 Hague Convention, is the court always required to undertake the sort of two-stage process which is required when considering the applicability of Art.25(1) of the Recast Brussels I Regulation?8 Second: is an asymmetric jurisdiction clause capable of meeting Art.3(a)’s definition