welcome to the March issue of ADVANT Beiten's International Briefing.

To understand what drives business success in Europe and what general counsel expect from in-house teams, external advisers, and European policymakers, ADVANT recently launched a research project to create “ADVANT Special Report: Europe’s opportunity outlook”. We surveyed 800 GCs across France, Germany, Italy, and the US, supported by interviews with senior legal leaders. The findings reveal companies’ views on Europe’s key opportunities and challenges in today’s complex economic and geopolitical climate and offer candid insights into what works well in the European legal and regulatory framework, and where improvement is needed. The results are clear: Europe remains highly attractive for investment, with 87% of US GCs viewing it as a key market for growth. If you or your clients are looking to follow this trend and take advantage of the opportunities Europe offers, ADVANT stands ready as your one‑stop shop for all Europe‑related projects.

In this issue we will also highlight interesting developments in the European and German legal landscape, invite you to meet us at international events, and tell you about our recent deals.

You can find the newsletter by following this LINK

Kind regards,

Dr Barbara Mayer
Prof Dr Hans-Josef Vogel
Dr Christian von Wistinghausen
Moritz Kopp

When it comes to distributing products to Indian customers on the ground, German manufacturers - as always - face the choice: make or buy. While the FTA substantially enhances India’s appeal as a strategic manufacturing base - by lowering trade barriers and deepening opportunities for supply‑chain integration, thereby offering European manufacturers commercially compelling pathway to leverage the “Make in India” ecosystem - alternate lighter entry models like distributorship arrangements provide a prudent initial step. It enables manufacturers to commercially assess the Indian consumer market, understand demand dynamics, and calibrate their long‑term investment strategy before committing to on‑ground manufacturing operations. 

European manufacturers can handle distribution themselves, from their home country, to access the Indian market, build distribution networks, and assess commercial viability without the immediate complexity of setting up a full-fledged local entity. They can also establish subsidiaries, branch or liaison offices in India. While establishing a subsidiary, branch or liaison office offers greater operational control and closer supervision over market activities, it typically involves regulatory approvals, compliance with foreign investment and corporate governance requirements, and the need to build local management and operational infrastructure. 

For distributorship, European manufacturers can appoint local companies as distribution intermediaries who know the market. In this context, it is possible for the European manufacturer to agree with its contractual partner in India either that its own (e.g. German) law applies or that Indian law applies. If the contract so provides, the contractual relationships are in principle subject to the same legal rules that would apply if the products were distributed in Germany. Or better still: Section 92c of the German Commercial Code (HGB) grants manufacturers who appoint commercial agents or distributors outside the European Economic Area greater contractual freedom than usual. In such cases, it is possible to deviate from all mandatory provisions of Sections 84 et seq. HGB - at least in the case of individually negotiated contracts. For example, the statutory minimum notice periods do not necessarily apply, and the goodwill indemnity under Section 89b HGB may be excluded or modified. 

Alternatively, the parties may decide that Indian distribution law shall apply. In that case, however, European manufacturers are well advised to seek advice from Indian lawyers regarding local regulatory environment.

While the parties may designate either German or Indian law as the governing law for their distribution arrangement, they retain full autonomy to structure, negotiate, and document a sophisticated cross‑border commercial relationship for commercial flexibility. However, in the Indian context – where no dedicated statute regulates distribution relationships – the practical commercial landscape necessitates the incorporation of appropriate contractual and regulatory safeguards. These safeguards must ensure a durable and compliant business presence in India, operating within the framework of the Indian Contract Act, 1872, and aligned with the on‑ground regulatory realities of the Indian market.

India’s exchange control regime is generally business‑friendly, allowing cross‑border payments such as distributorship fees, commissions, and royalties through established regulatory channels. However, the agreement must still be drafted with care so that its commercial structure and incentive mechanisms do not raise concerns under any Indian law. A clear, balanced, and well‑structured arrangement will support the parties’ commercial objectives while remaining comfortably within India’s regulatory boundaries.

India does not curtail commercial freedom in distribution arrangements; rather, it channels that freedom through a structured compliance framework. For any end‑product to lawfully enter and circulate within the Indian market, European manufacturers must comply with certain mandatory obligations such as certification standards, quality‑control approvals, labelling rules, and sector‑specific registrations. These requirements do not restrict the parties’ commercial choices; they simply ensure that products meet India’s consumer‑protection and regulatory expectations. For European manufacturers, careful structuring at the outset will ensure that commercial flexibility is harmonized with India’s mandatory regulatory environment. Success in India therefore demands both commercial foresight and regulatory discipline.

It is also important to agree that any disputes shall be decided by an arbitral tribunal. By contrast, agreeing on German jurisdiction would have the disadvantage that enforcement of a German court judgment - while theoretically possible - would require a very time-consuming recognition procedure in India, which would, among other things, necessitate bringing a new action. Enforcement of a foreign arbitral award in India is easier, as India (like, for example, Germany) is a party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Under this Convention, all signatory states have undertaken to enforce foreign arbitral awards within their territory without a renewed, full review of the merits.

India is an attractive enforcement jurisdiction owing to its distinctly pro‑enforcement stance toward foreign arbitral awards. Indian courts refrain from revisiting the merits or reopening factual findings, and the limited grounds for refusal are narrowly interpreted, with the burden placed squarely on the party resisting enforcement. Once enforceability is established, the award is treated as a decree of an Indian court to be executed against the opposite party in India without a fresh trial. For European manufacturers engaging Indian counterparties, this means that a well-drafted arbitration clause is a powerful risk management tool supported by an arbitration/enforcement‑friendly regime.

Oliver Korte
Sonil Singhania (Singhania & Partners LLP )
Jivesh Chandrayan (Singhania & Partners LLP)

Ruling

Article 25 (1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a third party, as the assignee of a claim for damages arising from the non-performance of a contract containing a jurisdiction clause, may rely on that clause vis-à-vis the original contracting party, as the assigned debtor of that claim, under the same conditions as those under which the other original party to the contract could have relied on that clause against that debtor, for the purposes of an action for recovery of that claim and without the consent of that debtor, in a situation where, in accordance with the national law applicable to that contract, as interpreted by the national case-law, an assignment of a claim entails a transfer, to the assignee’s assets, not only of the right of claim, but also of the rights attached to that claim, including the right to rely on the application of an agreement conferring jurisdiction set out in that contract, unless the original parties to the contract have expressly agreed that that clause cannot be relied on against them in the event of assignment, to a third party, of a claim arising from that contract.

CJEU, decision of v. 23 October 2025 – C-682/23 – Prorogation de compétence

Facts

E.B. and E. PL., two companies incorporated under Polish law, entered into two contracts on 24 March and 24 July 2017. The first concerned the preparation of a plot of land for the construction of a new wood products factory in Poland. The second governed the performance of construction work for that factory. On 4 March 2017 E. PL. concluded a subcontracting agreement with E. S.A., a company incorporated under Romanian law. On 10 July 2017, the latter in turn concluded a subcontracting agreement with K.P., a company incorporated under Polish law ("Subcontracting Agreement"). The Subcontracting Agreement contains a jurisdiction
clause stating that "any disputes shall be settled by the court having jurisdiction over the registered office of the contracting party" ("Jurisdiction Clause"), without defining the term "contracting party" in more detail. All the agreements are governed by Polish law.

By an assignment of claim agreement dated 16 December 2021, concluded with the participation of E. PL., E. S.A. assigned a claim for damages to E.B. ("Claim"). This Claim was said to result from K.P.'s failure to fulfil its obligations under the subcontractor agreement.

On 21 December 2021, E.B. brought an action against K.P. before the Tribunalul Specializat Cluj (Romania) for payment of the Claim including default interest. To justify jurisdiction, E.B. invoked the jurisdiction clause in the Subcontracting Agreement. It assumed that the local (Romanian) court had jurisdiction due to the
registered office of E. S.A.

According to K.P., Art. 7 No. 2 of the Brussels Ia Regulation is applicable to tortious claims. As the damage occurred in Poland, the Polish courts should have jurisdiction. In K.P.’s view, E.B. could not invoke the jurisdiction clause as a third party for contractual claims.

In its judgment of 19 December 2022, the Tribunalul Specializat Cluj dismissed the action due to an assumed lack of jurisdiction. E.B. lodged an appeal against this judgment with the Curtea de Apel Cluj on 11 April 2023. E.B. is of the opinion that the assignee's consent to a jurisdiction clause, regardless of when it was given, would be sufficient to establish its validity vis-à-vis the debtor. The latter would already have consented to it when the contract was concluded. Renewed consent would therefore not be necessary. In such a case, the national court designated by the jurisdiction clause would no longer have to examine whether the assignee had assumed the rights and obligations of the assignor.

K.P. counters that a jurisdiction clause would have effect only between the original contracting parties. Due to its personal contractual nature, it could not be invoked against third parties. Furthermore, Art. 25 of the Brussels Ia Regulation would have to be interpreted narrowly. Therefore, the existence of a jurisdiction agreement would always have to be determined between the parties to the proceedings themselves. The referring court points out that, in the present case, E.B., as the assignee of the claim for damages, is relying on the jurisdiction clause and is thus exercising a right linked to the Subcontracting Agreement which it wishes to assert against K.P. as the debtor of the assigned claim. On the other hand, however, as the assignee of only this individual claim, E.B. would not have assumed all of E. S.A.'s rights and obligations under the contract.

Furthermore, under Polish law, on which E.B. relies, the assignment of a claim would not only lead to the transfer of the claim to the assignee's assets, but also to the transfer of the rights associated with it, including the right to invoke the application of a jurisdiction agreement contained in the contract. However, the assignment of the claim would not mean that the obligations which the assignor has entered into vis-àvis the debtor of the assigned claim would be transferred to the assignee.

In those circumstances, the Curtea de Apel Cluj (Court of Appeal, Cluj) decided to stay the proceedings and to refer the following questions to the European Court of Justice for a preliminary ruling:

(1) Can Article 25 of [the Brussels Ia Regulation] be interpreted as conferring on the assignee of a claim arising from a contract [for the performance of works] the right to enforce the jurisdiction clause in that contract against the original party to the contract, if the assignment contract has, in accordance with the national law applicable to the substance of the dispute, transferred the claim and its ancillary rights, but not the obligations arising from the contract?

(2) In a case such as the one described above, is the opposition of the party that agreed to the jurisdiction clause, against whom the action is brought, relevant for the purpose of determining which court has jurisdiction? In addition, is a new consensus required from that party, prior to or concomitant with bringing a legal action, in order for the third-party assignee to be entitled to rely on the jurisdiction clause?

Grounds

30 [The first sentence of Article 25 (1) of the Brussels Ia Regulation] does not specify whether a jurisdiction clause may be assigned, beyond the circle of the parties to a contract, to a third party, who is a party to a subsequent contract and successor, in whole or in part, to the rights and to the obligations of one of the parties to the initial contract (judgment of 25 April 2024, Maersk and Mapfre España, C-345/22 to C-347/22, EU:C:2024:349, paragraph 47 and the case-law cited) nor whether such a third party may rely on such a clause against one of those original parties. (…)

38 [The] objectives [of the Brussels Ia Regulation] could be jeopardised if the enforceability of a jurisdiction clause in the relationship between one of the original parties to the contract in which that clause appears and a third party to that contract depended on whether it is one of those original parties or that third party who first relies on it by bringing an action before the designated court, which would be the case if that third party could not rely on that clause vis-à-vis those original parties under the same conditions as those under which those original parties could, in accordance with the case-law referred to in paragraph 34 of the present judgment, rely on that clause against that third party.

39 It follows that, in a situation in which an original party to the contract containing a jurisdiction clause has not consented to that clause being relied on against it by a third party to that contract, that third party may nevertheless rely on that clause against that original party if that third party has succeeded to all the rights and obligations of the other original party to that contract. (…)

46 A dispute concerning the recovery of a claim for damages, on the basis of the liability of one of the original parties to the contract containing a jurisdiction clause, on account of an improper performance of that contract, does indeed arise from the legal relationship in connection with which that clause was agreed, with the result that that original party cannot be surprised to be sued before the court designated by that clause for the purposes of that recovery, even if that claim for compensation has been assigned to a third party to the contract. (…)

48 Consequently, it must be held that, in the event of assignment of a claim arising from a contract containing a jurisdiction clause, the assigned debtor, who is the original contractual partner of the assignor, must remain, in principle, bound by that clause.

49 The fact remains that, first, that original contractual partner must also not be placed in a less favourable situation as a result of that assignment of claim. In other words, that clause must be interpreted as preventing any situation in which that contractual partner could be sued before courts other than those before which the other original party to the contract could have brought proceedings under that clause. (…)

54 [Absent] of (…) an express agreement, in the event of assignment of a claim arising from a contract containing a jurisdiction clause, the assigned debtor, who is the original contractual partner of the assignor, must remain bound by that clause and cannot unilaterally oppose its application where the assignee of that claim brings proceedings, before the court designated under that clause, aimed at recovering that debt.

55 In the present case, E. S.A. and K.P., as the original parties to the subcontract in question, agreed, by means of the jurisdiction clause at issue, that the ‘court within whose jurisdiction the contracting party has its registered office’ would have jurisdiction to hear disputes arising from that contract, including as regards the claim for damages in question, arising from that contract. First, it is apparent from the order for reference that E.B., as the assignee of that claim, brought proceedings before the same court as that before which E. S.A could have brought proceedings under that clause if E. S.A. had not assigned that claim to E.B., with the result that K.P. does not appear to be placed in a less favourable situation as a result of that assignment. Second, it is not apparent from the file before the Court that those original parties agreed that, in the event of an assignment of a claim arising from the subcontract in question, that clause could not be relied on against them by the assignee. Therefore, subject to verification by the referring court, it appears that, in the context of the dispute in the main proceedings, E.B. is entitled to rely on that clause against K.P. in order to obtain recovery of the claim for damages in question.

56 In the light of all of the foregoing considerations, the answer to the questions referred is that Article 25 (1) of the Brussels Ia Regulation must be interpreted as meaning that a third party, as the assignee of a claim for damages arising from the non-performance of a contract containing a jurisdiction clause, may rely on that clause vis-à-vis the original contracting party, as the assigned debtor of that claim, under the same conditions as those under which the other original party to the contract could have relied on that clause against that debtor, for the purposes of an action for recovery of that claim and without the consent of that debtor, in a situation where, in accordance with the national law applicable to that contract, as interpreted by the national caselaw, an assignment of a claim entails a transfer, to the assignee’s assets, not only of the right of claim, but also of the rights attached to that claim, including the right to rely on the application of an agreement conferring jurisdiction set out in that contract, unless the original parties to the contract have expressly agreed that that clause cannot be relied on against them in the event of assignment, to a third party, of a claim arising from that contract.

Comments

1. The Sixth Chamber of the ECJ has decided that the assignee of a claim (in this case a claim for damages) has the right under Article 25 (1) of the Brussels Ia Regulation to invoke the jurisdiction clause agreed to in the original contract against the debtor. This also applies if the debtor has not again explicitly agreed to the clause. The decision ultimately strengthens legal certainty by increasing the predictability of the jurisdiction clause and is therefore welcomed.

2. The present decision further extends the rights of the assignee. In earlier cases (ECJ, judgment of 27 February 2025, Società Italiana Lastre, C-537/23, EU:C:2025:120, paragraph 34 and the case law cited therein = IWRZ 2025, 145 Anm. Fervers), the ECJ already emphasized that agreements on jurisdiction must be interpreted narrowly due to the exceptional nature of Article 25 of the Brussels Ia Regulation. Until now, the ECJ had merely decided that a jurisdiction agreement remains effective if a third party has expressly assumed all rights and obligations (see, ECJ, judgments of 21 May 2015, CDC Hydrogen Peroxide, C-352/13, EU:C:2015:335, BeckEuRS 2015, 477022, paragraph 65, and of 18 November 2020, Delay-Fix, C-519/19, EU:C:2020:933, BeckEuRS 2019, 665356, paragraph 47 and the case law cited therein).

3. However, the ECJ's decision could mean more work for courts. National courts must now carefully examine whether the assignee has acquired all rights in the present case and how the assignment has been contractually structured. This can only be done on a case-by-case basis.

4. The decision strengthens the rights of the assignee. In practice, when assigning a claim, it should be clearly specified in the contract which rights (not only in relation to jurisdiction clauses) are attached to the claim, particularly in the interests of the debtor as the original contracting party.

5. It might also be conceivable to transfer the reasoning behind the decision to the assignment in connection with arbitration clauses. According to Article 1 (2) (d) of the Brussels Ia Regulation, arbitration clauses do not fall within the scope of the Regulation. However, in its reasoning, the ECJ refers to the legal nature and the assertion of ancillary contractual rights by the assignee. Since arbitration clauses are generally considered to be ancillary contractual rights, it is not unreasonable to transfer the principles of the decision. Accordingly, the assignee can also invoke an arbitration clause in accordance with the principles laid down in the decision.

6. While, according to the prevailing view in German jurisprudence and legal scholarship, an arbitration clause is transferred to the assignee (see FCJ, judgment of 2 October 1997 – III ZR 2/96, NJW 1998, 371; Wolf/Eslami, in BeckOK, 58 ed. 9/2022, Sec. 1031 m.n. 10), it would benefit a unified legal understanding within the European Union if the ECJ, irrespective of the application of the Brussels Ia Regulation, would also apply these general principles to arbitration clauses as well.

Oliver Korte
Dr Tobias Pörnbacher

_{The article originally appeared in IWRZ 2026, p. 47 ff.}

Paul Boutron is a graduate of the Grande Ecole programme at ESCP Business School and also holds a Master 2 degree in business law and taxation (University of Paris I).

After initially working at Hogan Lovells, he joined ADVANT Altana in 2016 before being appointed counsel in 2022.

ADVANT Altana's lawyers Camille Manguer and Paul Boutron explain the practical implications for your litigation issues.

welcome to the June issue of ADVANT Beiten's International Briefing.

Germany remains one of the world’s most attractive destinations for foreign direct investments. This reputation is well-deserved, as the country offers a stable legal environment, a highly skilled workforce, and a dynamic industrial landscape, all of which create a robust foundation for successful business ventures. In ADVANT Beiten's newly released guide "Investing in Germany" our experts provide a comprehensive overview of the legal framework for foreign investments in Germany - practical, understandable and with extensive experience in the field of foreign direct investments.

This year our Beijing office proudly celebrates its 30^th anniversary. We are delighted to share with you an insightful interview with our Beijing team of Susanne Rademacher, Dr Jenna Wang-Metzner, and Lelu Li, highlighting their dedication and three decades expertise in the field of the inbound and outbound investments in China.

In this issue we will also highlight interesting developments in the European and German legal landscape, invite you to meet us at international events, and tell you about our recent deals.

You can find the newsletter by clicking here.

Kind regards,

Dr Barbara Mayer
Prof. Dr Hans-Josef Vogel
Dr Christian von Wistinghausen
Moritz Kopp

Case Background

The dispute arose from an asymmetrical jurisdiction clause in an international contract related to a project undertaken by two individuals. The contract specified that disputes would be resolved by the court of Brescia, Italy. However, it also granted SIL the right to initiate legal proceedings in any other competent court, whether in Italy or abroad.

This type of clause is characterized by granting one party discretionary choice of jurisdiction, while binding the other party to a fixed forum. In this instance, SIL retained the ability to select the jurisdiction, whereas Agora was restricted to the court of Brescia.

Following alleged defects in project execution, both SIL and Agora were sued for liability and damages before the Regional Court of Rennes, France. Subsequently, Agora initiated proceedings in France against SIL based on a guarantee. SIL contested the French court’s jurisdiction, but both the Regional Court of Rennes and the Cour d'Appel ruled in favour of French jurisdiction.

Legal Issue

The Cour de Cassation referred the matter to the ECJ, questioning whether the asymmetrical jurisdiction clause aligned with the Brussels I Regulation and consumer protection principles. Specifically, the ECJ was asked to assess whether such a clause placed the weaker party at an unlawful disadvantage and whether it was legally enforceable. This necessitated an interpretation of Article 25 (1) of the Brussels I Regulation, particularly regarding the validity of jurisdiction clauses.

Key Aspects of the Judgment

The ECJ determined that an asymmetrical jurisdiction clause is not inherently invalid. Such clauses may be upheld if they comply with the Brussels I Regulation and do not impose an unfair disadvantage on the weaker party.

The court emphasized that the validity of such clauses must be assessed on a case-by-case basis. In this instance, the ECJ found no undue disadvantage for Agora, ruling that the clause remained effective as it did not contravene the Brussels I Regulation. Since the contract was purely commercial and concluded between two businesses, the consumer protection provisions of the regulation were deemed inapplicable.

The ECJ reaffirmed that jurisdiction clauses contribute to contractual freedom and legal certainty, both of which are protected under the Brussels I Regulation. Given that both parties had freely negotiated and agreed to the terms, the fact that Agora lacked the same jurisdictional flexibility as SIL did not constitute an impermissible disadvantage.

Conclusion

The ECJ's ruling in the SIL v. Agora case has significant implications for the enforceability of asymmetrical jurisdiction clauses in international commercial contracts. The judgment reinforces legal certainty in cross-border agreements and clarifies that such clauses are not inherently invalid but must be scrutinized on an individual basis to ensure compliance with the Brussels I Regulation and applicable legal principles. Ultimately, the ruling affirms that commercial parties’ contractual autonomy influences the validity of jurisdiction clauses.

Dr Ralf Hafner
Dr Tobias Pörnbacher

The current status is that, on 12 February 2024, the UK signed the Hague Convention of 2019 regarding the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (hereafter referred to as the “2019 Hague Convention”), and announced that it will ratify it as soon as possible. Once ratified, the 2019 Hague Convention will come into force after a period of 12 months, i.e. not before 2025. 

In the Q&A, we take a closer look at the consequences for enforcement law in France, Italy and Germany after Brexit and before the ratification by UK of the 2019 Hague Convention.