On September 16, 2025, the 3rd Panel of the Superior Court of Justice (STJ) began hearing an appeal concerning the validity of a foreign jurisdiction clause included in a maritime representation contract between the Brazilian company MBA Agência Marítima Ltda. and the multinational Zim Integrated Shipping Services Ltd.
MBA filed a lawsuit for damages against Zim, also seeking the annulment of contractual clauses that established London as the chosen forum, alleging imbalance between the parties.
At first instance, the Santa Catarina court upheld the validity of the foreign forum clause, declared the Brazilian judiciary incompetent to rule on the case, and dismissed the lawsuit without examining the merits.
On appeal, the Court of Justice of Santa Catarina (TJ/SC) ruled in favor of MBA, finding that there was economic and structural vulnerability, that the foreign forum had been unilaterally imposed, and that, since this was a commercial representation contract, Article 39 of Law 4.886/65 applied, which establishes jurisdiction in the domicile of the commercial representative.
The reporting justice voted to grant Zim’s appeal, stating that STJ case law requires concrete vulnerability—that is, practical obstacles to exercising the right of action—not simply economic inequality. She also noted that MBA had compatible legal and operational structure and had invoiced about R$ 42 million in the contractual relationship, which, in her view, ruled out any real incapacity or prejudice in litigating in London. In addition, the justice observed that both parties were aware of the jurisdiction clause.
The trial was suspended after a request for review by Justice Nancy Andrighi, meaning that no final decision has yet been reached by the STJ. If the Court decides to validate the foreign jurisdiction clause, it will reaffirm the understanding that mere economic disparity does not render such a clause invalid, as long as the party is demonstrably able to exercise its procedural rights in the chosen forum. If MBA’s argument prevails, however, it could open precedent for foreign forum clauses to be more easily contested in contracts where one party is significantly more vulnerable.
There is also a broader dimension of legal certainty in international contracts—companies seek predictability regarding jurisdiction, but there is also a social and legal interest in preventing abuses or excessive impositions.
As seen in this case, the forum selection clause is an important contractual instrument designed to provide greater legal certainty to the contracting parties. Here, London was chosen as the jurisdiction, but the plaintiff argued that this choice was incompetent, claiming it had been unilaterally imposed and created a clear economic imbalance, given that the plaintiff’s share capital (R$ 20,000) would be insufficient to stand against the defendant’s billion-dollar structure.
In her vote, the reporting justice applied STJ case law, which allows a foreign jurisdiction clause to be set aside only when there is concrete vulnerability, characterized by actual obstacles to exercising the right of action, and not by mere economic disparity. Justice Daniela Teixeira emphasized that the plaintiff, although smaller in size, had legal and operational structure compatible with the contract and had even invoiced R$ 42 million from the contractual relationship.
The issue is both important and interesting, as it shows that the reporting justice relied on an objective criterion to support her vote. Her reasoning reinforces the pressing need for concrete vulnerability to be demonstrated before a foreign jurisdiction clause can be disregarded. It is relatively common for contracts to be signed between companies with unequal economic strength, and Justice Daniela’s vote sought to demonstrate that, in such cases, there is no automatic presumption of vulnerability between the parties.
Photo: Canva
