A forum selection clause determines which court has jurisdiction. Simple on paper, but often a major headache in practice. In our practice, we see contractual provisions that appear to work at first glance but fail in a dispute. Awkward wording leads to discussions regarding admissibility, parallel proceedings, or even the ineffectiveness of the choice. Brussels I-bis offers a strong framework; beyond that, good preparation is especially important.
What is the legal problem?
Forum selection clauses are only effective if they meet formal requirements and adhere to mandatory law. Internationally, the rules vary by treaty area and country. Opposing parties may contest jurisdiction based on formal defects, unreasonableness, or conflict with consumer law. An awkward clause leads to proceedings before unexpected courts.
What does the law say?
Brussels I-bis (Regulation (EU) 1215/2012) governs choice of forum within the EU strictly under Article 25: in written form or confirmed, with strong effect even in the case of non-exclusive choices. The Hague Convention on Choice of Forum 2005 (EU, UK, Singapore, Mexico, China since 2025) regulates similar matters outside the EU. The Hague Judgment Convention 2019 increases global recognition.
Under Dutch law, Articles 8-9 of the Code of Civil Procedure govern jurisdiction. For consumers, employees, and insured persons, protective mandatory rules apply under Articles 17-23 of Brussels I-bis.
What risks do companies face?
An unclear choice of forum leads to jurisdiction proceedings before the main case begins. Awkward wording can interpret an exclusive choice as non-exclusive. Hybrid clauses (mixing court and arbitration) are difficult to enforce. Incorrect choice of law for consumers can result in a local mandatory court under Article 19 of Brussels I-bis.
Practical example from our practice
We represented a Dutch company with a choice of forum for the Amsterdam District Court in the general terms and conditions. The German client disputed this and argued that the terms and conditions had not been effectively accepted under Section 305, paragraph 2 of the German Civil Code (BGB). Upon renegotiation, we included a choice of forum in the main contract with explicit acceptance in the order confirmation. The following disputes were assigned to Amsterdam within three months under Article 25 of Brussels I-bis.
What can you do?
Include the choice of forum in the main contract, not just in the general terms and conditions. Use clear wording indicating exclusivity. Align with the choice of law and arbitration clause. For B2C: respect consumer law. Document acceptance carefully. Assess the accessibility and enforceability of the chosen forum. See also our article on How to negotiate a favorable choice of forum?