Is it abusive for one party to an agreement to have the right to choose to pursue a claim in any competent court while the other party is bound to only one jurisdiction?
Until recently, asymmetrical jurisdiction clauses – also know as one-sided clauses – in commercial agreements have come under assault.
Fortunately, that appears to be changing.
There have been a number of court decisions, from the French courts in particular, declaring asymmetrical jurisdiction clauses to be unfair and abusive and are therefore void. These courts have held that these clauses contravene the basic procedural principle of equality of parties, where one party is granted under the agreement better opportunities to bring claims against the other.
In-house counsel are often asked to share privileged materials with third parties that have a common interest in a piece of litigation. Common interest privilege is a category of privilege that permits parties to disclose privileged evidence between themselves without losing privilege. The determination of common interest is a factual one, which may consider whether the parties share a common goal, seek a common outcome or have a self-same interest on either or both the general claims (e.g., both sued for exactly the same alleged misconduct) or certain specific allegations (e.g., an expert report on one specific matter in issue). Common interest privilege is asserted and the documents are shared—often with little to no understanding about the nature of the privilege claim being asserted or how to best share documents with the third party in a way that protects its subsequent dissemination.
A common interest privilege is not a stand-alone privilege that can be claimed on all documents shared with third parties in the face of actual or impeding litigation. In order to claim the benefit of a common interest privilege, the documents must benefit from either solicitor-client privilege or litigation privilege. Where the privileged document is shared, both the originating party and the third party receiving the document can claim a common interest privilege, independent of one another.