Party autonomy provides certainty and predictability to the parties, reduces litigation costs, promotes the prompt assertion of jurisdiction by a court, and simplifies case management between different countries. However, the existence of an exclusive jurisdiction clause cannot completely extinguish conflicts of jurisdiction. Common law countries traditionally adopt discretionary instruments, such as forum non conveniens and anti-suit injunctions to tackle conflicts of jurisdiction. Both instruments work together in common law countries to create a balance between international comity and effective case management. The application of these two instruments, however, has been questioned in the European Union (EU). This article examines conflicts of jurisdiction in the Brussels I Regulation and particularly focuses on the effect of the European approach in cases involving a jurisdiction clause. It is submitted that the current Brussels regime in dealing with conflicts of jurisdiction and choice of court agreements demonstrates three weaknesses: procedural certainty takes priority over party autonomy; mutual trust and comity override justice in individual cases; and an artificial fragmentation of the internal and international market. It is expected that situations will be improved after the proposed amendment in the Recast Proposal and the Presidency Amendment is adopted, which provides harmonised choice of law rules to decide on the material validity of a jurisdiction clause and the negative kompetenz-kompetenz rule to decide on the preliminary issue of an exclusive choice of court agreement. Although the proposals do not accept the common law instruments to tackle conflicts of jurisdiction in cases with exclusive jurisdiction clauses, it may not be necessary to insist that forum non conveniens and anti-suit injunctions be adopted where a proper approach has been established to ensure the effectiveness of an exclusive jurisdiction clause and to provide for the priority of the courts in deciding on its validity. However, the European lawmaker should pay specific attention to the improvement of the functioning of the Regulation in the international context to tackle conflicts of jurisdiction in choice of court agreements involving a third country.
