The application of these model clauses has three advantages: legal certainty, costs and time. Although the non-exclusive jurisdiction provides flexibility to the parties, most parties tend to choose exclusive jurisdiction for the resolution of all disputes. This is in part an earlier case law, which defines the terms it means, and the parties can thus predict the outcome of a dispute. The choice of exclusive jurisdiction is also inexpensive, z.B. without translations, and saves time to argue in other jurisdictions. In the market, there is a consensus on exclusive jurisdiction to guarantee legal certainty and, therefore, these standard clauses clarify the chosen jurisdiction and the intentions of the parties. Home ISDA English Court of Appeal Judgment recognizes the importance of the industry standard isda Master Agreement conditions, if a competing jurisdiction clause is challenged in a funding agreement This clause is used in the list when the parties have chosen the laws of the State of New York as the law in force. It is similar to the standard jurisdiction clause for English law (except for the fact that the New York State courts have jurisdiction) and, therefore, the above points also apply to that clause. Article 13, point b) of the 2002 ISDA Governing Treaty also provides for non-exclusion, unless the Brussels Convention and the 1988 Lugano Convention apply (i.e. the procedure concerns a “Court of Convention”). The effect of the Brussels Regulation has made it more difficult to apply exclusivity, confirming the need for a simplified clause.
Neither the 1992 jurisdictional clause nor the 2002 jurisdiction clause complies with the Hague Convention, which is an additional reason for new and optional clauses. This point was reinforced by ISDA members during the consultation due to unanimous consensus on a clause in line with the requirements of the Hague Convention. The Italian jurisdiction clause related to the AI and substantive claims, while the English jurisdiction clause covered disputes under the ISDA`s governing contract. There is no contradiction between jurisdiction clauses, as they are linked to separate commercial and legal relationships. Although the AI referred to the swap arrangement, this did not result in the ISDA agreement and the English jurisdiction clause being subsumed by FA. The 2002 ISDA jurisdiction clause has already slightly expanded the importance of “Proceedings” (compared to the 1992 agreement) to a “dispute arising from or in connection with that agreement,” which expressly states that the parties intend to resolve disputes over the agreement through the clause. However, this clause is often amended and expanded to include disputes that do not arise directly from the agreement. This clause is intended for use where the parties have chosen the law in force either as English law or as a New York law, but they agree that they are not prevented from exercising a claim other than that of the jurisdiction in question (depending on the choice of the law in force).
This separation of the non-exclusive jurisdiction from exclusive jurisdiction clauses is in stark contradiction to the 1992/2002 clauses which, as noted above, contain complex exceptions to non-exclusivity. This separation of clauses clearly indicates the parties` intentions as to where they can assert rights. This case reminds us that ISDA master contracts should be carefully considered and negotiated as separate agreements. The AI asked TRM and BNP to conclude a safeguard agreement. TRM has entered into a swap agreement with BNP`s Bank of Paris as a hedge bank. This was done by the Masteragrement (ISDA Master Agreement) and by the Schedule of the International Swaps and Derivatives Association.