Introduction

Party autonomy as a criterion for determining international jurisdiction is widely accepted, subject to applicable restrictions or limitations. In certain cases, parties are allowed to agree with the judge or arbitral tribunal to resolve their dispute. This means that jurisdictional determination is not exclusively dependent on legislative direction; instead, the parties can designate the competent forum.

Explicit jurisdiction clauses provide cross-border litigants with predictability, enabling parties to know in advance where any disputes arising from their transactions will be adjudicated. Such agreements can potentially mitigate transaction costs by circumventing the need to litigate preliminary jurisdictional issues. When autonomy is allowed, it takes precedence over the options provided by legislation.

However, businesses occasionally fail to include specific provisions regarding venue—whether by oversight or due to a lack of experience, implicitly consenting to litigate in a particular forum, even if that forum is not expressly stated in their contract. From a conceptual standpoint, it is conceivable that parties may implicitly agree to submit to the jurisdiction of a particular court, and this tacit consent can be inferred from the parties’ conduct. This form of “implied” jurisdiction agreement is still a relatively underexplored area in legal scholarship.

With the broad implementation of the Hague Conventions, the European Union, and Mercosur Block regulation, parties to international contracts are now better positioned to foresee and manage jurisdictional conflicts. This article examines the frameworks and case law that govern jurisdiction in cross-border commercial disputes, focusing on the conventions and regulations that shape international contract law and answers the question of whether silence, within a dispute resolution jurisdiction actually means consent.

Legal Framework

Jurisdiction is governed by various conventions and regulations that establish clear rules for jurisdictional agreements and enforceability of judgments. These instruments aim to bring clarity to cross-border disputes by defining when and how jurisdiction may be agreed upon.

The 2005 Hague Convention on Choice of Court Agreements focuses on the importance of explicit, exclusive choice-of-court agreements in cross-border contracts. Under Article 3.(c), this convention requires that such agreements be concluded: “in writing or by any other means of communication which renders information accessible”.

The Explanatory Report of the 2005 Hague Convention emphasizes that paragraph (c) requirements are both necessary and sufficient under the Convention, which explicitly states that an agreement “is not covered by the Convention if it does not comply with them.” The report raises an example of invalid consent: X sends an unsolicited email to Y, containing a jurisdiction clause favouring Ruritania’s courts. The email stipulates that Y’s silence within seven days will constitute acceptance. X later claims a valid contract and initiates proceedings in Ruritania.

This example underscores that tacit jurisdiction by silence is invalid under the Convention, as it fails to meet the formal requirements of being in written form and reflecting genuine consent. Silence, therefore, cannot serve as a legitimate basis for settling jurisdiction.

Similarly, under Article 5.(f) of the 2019 Hague Judgments Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, a judgment will only be eligible for recognition if, among other conditions, the defendant argued on the merits before the court of origin “without contesting jurisdiction within the timeframe provided in the law of the State of origin”.

The Explanatory Report of the 2019 Hague Convention clarifies that this filter presumes “the defendant has implicitly agreed that the dispute will be adjudicated by the court where the claim was brought” if no timely jurisdictional objection is raised. Therefore, there remains no allowance for silence to constitute consent.

Within the EU, both Regulation No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, under Article 25, as well as the 2007 Lugano Convention (Article 23.1) require that such jurisdictional agreements be documented in “writing or in a clearly evidenced form”, rejecting any reliance on tacit or implied acceptance, reinforcing predictability and certainty in cross-border legal arrangements.

In contrast, the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters establishes in Article 18 that a court in a Contracting State will have jurisdiction if a defendant voluntarily appears before it. This rule, however, does not apply when the appearance is solely to contest jurisdiction or when another court has exclusive jurisdiction over the matter. This provision is mirrored in the UK’s Civil Jurisdiction and Judgments Act 1982. Hence, tacit acceptance of jurisdiction could indeed be inferred under specific conditions—namely, if the defendant engages in proceedings without formally challenging the court’s jurisdiction.

Similarly, Article 6 of the 1994 Buenos Aires Protocol on International Jurisdiction in Contractual Matters jurisdiction can be extended to the forum where the action is initiated if the defendant voluntarily and explicitly accepts the court’s authority after proceedings have begun. This acceptance—provided it is clear, affirmative, and not merely implied—can serve as tacit consent to jurisdiction, even in the absence of a prior written agreement. Thus, the Buenos Aires Protocol permits jurisdictional consent to be inferred directly from the conduct of the parties, setting it apart from the more stringent requirements for written agreements seen in the Hague Conventions and EU regulations.

At first glance, it appears that international legislators have predominantly favoured explicit agreements to ensure clarity and predictability in cross-border jurisdictional matters. This approach, as seen in the Hague Conventions, minimizes ambiguity and potential disputes. However, the 1968 Brussels Convention, the UK’s 1982 Jurisdiction Act, and the Buenos Aires Protocol reflect a more nuanced perspective, permitting tacit acceptance under specific conditions while firmly rejecting silence as consent. This dual approach underscores a careful balance between fostering party autonomy and safeguarding against the risks of fictitious jurisdiction, reflecting a broader acceptance of implied jurisdiction within certain jurisdictions in both Europe and Latin America.

Case Law Analysis

In Estasis Salotti v. Rüwa (1976), the CJEU clarified that a jurisdictional clause printed on the back of a contract was insufficient to demonstrate clear consent to jurisdiction under Article 17 of the Brussels Convention unless both parties explicitly acknowledged it. The court stated, “the requirement of a writing in Article 17 would not be fulfilled in the case of indirect or implied references … for that would not yield any certainty” Hence, the court insisted on clear evidence of agreement to uphold jurisdictional clauses in cross-border agreements.

In Profit Investment SIM SPA v. Stefano Ossi Profit Investment SIM SPA (2015), the ECJ addressed whether tacit jurisdictional consent could be inferred when a prorogation of jurisdiction clause was unilaterally inserted into a financial prospectus. The Court held that such a clause must meet the requirement of “writing” stating that “consent to a prorogation of jurisdiction clause cannot simply be tacit or inferred from the circumstances” and required clear, express consent rather than an implied agreement.

Vizcaya  Partner v. Picard Vizcaya (2016), involved an attempt to enforce a U.S. bankruptcy court judgment in Gibraltar where the UK Privy Council highlighted that the authorities that deny the possibility of an implied agreement really meant that there had to be an actual agreement or consent. However, the Council stated that “[t]here is, therefore, no basis in the evidence for the assertion that there was a contractual term that Vizcaya submitted to the New York jurisdiction”.

The conclusion reached is that an agreement to submit to the foreign court’s jurisdiction may be implied.  The test for finding such implied agreement, however, is not easily satisfied as a matter of English law.  By holding that agreement or consent to the jurisdiction of a foreign court can be implied, provided that there is real agreement or consent, emphasizes the importance of a demonstrable mutual understanding between the parties. This UK Privy Council standard ensures that implied jurisdictional agreements are not inferred lightly, safeguarding against overreach while allowing flexibility in exceptional circumstances where the parties’ conduct unequivocally indicates consent.

In Addax Energy SA v. Petro Trade Inc. (2022) the London Circuit Commercial Court considered whether an English jurisdiction clause could be incorporated into a long-term distribution agreement, despite no explicit agreement to such a clause during contract formation. Mrs Justice Cockerill noted “[c]onditions … may be incorporated by a course of dealing between the parties where each party has led the other reasonably to believe that they intended that their rights and liabilities should be ascertained by reference to the terms of a document which had been consistently used by them in previous transactions”.

Though this case may be considered to provide a relatively low threshold required to be met to determine an issue about jurisdiction, the decision illustrates that a history of repeated transactions under specific terms may imply acceptance of those terms, suggesting that a pattern of conduct between parties can sometimes justify inferring jurisdictional consent. This is even absent explicit agreement. This is in contrast to other cases where explicit consent was deemed necessary by certainty.

There is a preference in international law for explicit jurisdictional agreements, establishing that implied consent alone is generally insufficient to uphold jurisdiction because the initial threshold focuses on certainty. However, a more flexible threshold is emerging, allowing for tacit or implied consent in certain cases. Nevertheless, no case has allowed silence or inaction to meet this standard; in fact, they suggest the opposite.

Final considerations

The analysis of international frameworks and case law demonstrates a clear preference for explicit jurisdictional agreements, emphasizing the need for written, verifiable consent to uphold the certainty in cross-border commerce. The Hague Conventions and EU regulations are stringent examples in rejecting tacit acceptance.

However, certain frameworks, such as the Buenos Aires Protocol, and case law demonstrate a more flexible approach, allowing jurisdictional consent to be tacit rather than formal agreements. A voluntary appearance before a court, a party’s conduct through a course of dealing, or failure to contest jurisdiction within a prescribed period are examples where submission as tacit acceptance has been upheld.

Some authors argue that implied jurisdiction agreements do not align with the needs of international commerce, based on the tacit agreement that is not genuinely mutual, they provide minimal value and prefer predictability. However, as seen in this article, what makes the agreement tacit is counterparties voluntarily appear before the court without contest jurisdiction; their conduct; or as the course of dealing.

In conclusion, silence does not mean consent. Instead, tacit jurisdiction acceptance hinges on clear actions. Thus, while the rigid frameworks prioritize certainty, a nuanced approach is emerging where conduct can imply consent, provided it is unambiguous. The balance between explicit agreements and implied consent continues to evolve, reflecting the delicate interplay between predictability and flexibility.

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Marco Primo is an LLB graduate with honors from the Universidad de Buenos Aires (Argentina). With a solid academic background, distinguished participation in international arbitration moot courts, and prior experience in consulting, he nowadays develops as an Associate at Martínez de Hoz & Rueda law firm.

The views expressed herein are solely those of the author and do not necessarily reflect the positions of any associated institutions, clients, or affiliated entities.