In Sicaly, Cass. 1st civ., 15 May 1974, the Cour de cassation upheld an asymmetric clause giving one party only the right to choose between a court or an arbitral tribunal.
However, since then, the Cour de cassation has issued some controversial decisions where it refused to enforce unilateral option clauses. Those cases arguably had no real bearing on asymmetric arbitration clauses since the option offered was between national courts. For instance, in the highly criticised Rothschild case (Cass. 1st civ., 26 September 2012, No. 11-26.022), the Cour de cassation held that an agreement providing an option to one party to choose between an indefinite choice of jurisdictions is void.
But in the recent Apple case (Cass. 1st civ. 7 October 2015, No. 14-16.898), the Cour de cassation clarified its position. The court gave effect to a clause that offered a rather limited choice to the beneficiary of the option, i.e. between the Irish courts, the court of the reseller’s corporate seat (France), or “any jurisdiction where harm to [the reseller] is occurring”. The court reached its conclusion on the basis that such a clause was foreseeable as the option permitted the identification of the jurisdictions before which the action could be brought.
In light of this latest decision, most scholars and practitioners are of the view that asymmetric clauses are valid under French law, provided that the choice offered to the beneficiary of the option is objectively limited and predictable.