A jurisdiction dispute is a procedural incident concerning the competence of the court, preceding the substantive hearing. In our practice, jurisdiction disputes arise in virtually every international contract without a clear choice of forum. Opposing parties may contest jurisdiction based on procedural defects, mandatory law, or strategic reasons. Those who respond strategically can gain—or lose—months to years.
What is the legal problem?
Jurisdiction disputes require knowledge of Brussels I-bis, the Hague Convention on Choice of Forum, lis pendens, and local procedural law. Opposing parties often use procedural objections to delay the main proceedings. The burden of proof regarding jurisdiction lies with the claimant. Formal requirements for a choice of forum must be correct. Strategic summons before an unexpected court can be advantageous but also costly if jurisdiction is denied.
What does the law say?
Under Brussels I-bis (Regulation 1215/2012), detailed rules apply to the examination of jurisdiction. Lis pendens (Article 29) and related actions (Article 30) govern parallel proceedings. Choice of forum takes precedence under Article 31. The Hague Convention on Choice of Forum strengthens choice of forum outside the EU. Mandatory protection rules apply to consumers and workers.
Under Dutch law, Article 11 of the Code of Civil Procedure governs jurisdiction incidents. The court assesses jurisdiction ex officio under Article 27 of Brussels I-bis. Under Article 26 of Brussels I-bis, appearance without reservation implicitly accepts jurisdiction.
What risks do companies face?
A lost jurisdiction dispute leads to proceedings in an unexpected court. Delays caused by incidents can last for months. Awkward wording of the choice of forum leads to conflicts of interpretation. Parallel proceedings multiply costs and legal fees. Strategic errors regarding the place of summons can shift the advantage to the opposing party. Unintended acceptance of jurisdiction strengthens weak jurisdiction.
Practical example from our practice
We represented a Dutch company that summoned a French client in the Netherlands based on the place of performance under Article 7(1) of Brussels I-bis. The French party contested jurisdiction based on the place of establishment under Article 4. The procedural incident lasted eight months. The court ruled on jurisdiction based on Incoterm FOB Rotterdam. In subsequent contracts, we included an explicit choice of forum clause in the main contract — incident and delay completely avoided.
What can you do?
Incorporate exclusive choice of forum clauses in every contract under Article 25 of Brussels I-bis. Carefully assess jurisdiction before issuing a summons. Anticipate objections from the opposing party. Gather evidence for grounds of jurisdiction. Avoid appearing in court for a jurisdictional objection under Article 26 of Brussels I-bis. Combine with expedited summons in case of lis pendens risk. See also our article on Which court has jurisdiction?