The Abuse of the Express Submission Clause.

Resolving a dispute in a jurisdiction different from that of the defendant’s domicile is no longer a procedural advantage: the so-called express submission clause to a specific jurisdiction through a contract or negotiable instrument no longer produces the effects desired by the creditor.

Currently, numerous judicial proceedings in commercial and civil matters are halted from the very first ruling, even when the legal instrument executed complies with all formal requirements. The issue no longer lies in the existence of the debt, but in the jurisdiction of the judge before whom the action is filed.

In this new scenario, the submission clause imposed by the creditor has ceased to be an element of procedural certainty and has become, in certain cases, a legal risk that compromises the advantage of litigating in a specific jurisdiction.

In adhesion contracts, for example, one party unilaterally sets the terms of the legal relationship. The other party merely accepts or rejects the contract as a whole. This structure, common in the financial sector, creates an asymmetry that becomes particularly significant when an express submission clause is imposed in favor of courts located far from the domicile of the borrower or debtor.

Therefore, submitting to a jurisdiction imposed by the creditor almost always entails travel, additional costs, and operational difficulties for the defendant, which do not affect both parties equally, particularly when such submission arises from a clause in an adhesion contract.

For the consumer, an individual, or even a small business, this scenario may result in economic defenselessness that hinders the effective exercise of the right to defense. The consequence is a material barrier to access to justice, incompatible with the constitutional standard of effective judicial protection.

The most recent line of case law is unequivocal. In decision I.11o.C.100 C (11a.), published on January 16, 2026, the Eleventh Collegiate Court in Civil Matters of the First Circuit held that an express submission clause contained in a promissory note executed to secure a credit agreement cannot produce legal effects when the signatory had no real opportunity to negotiate its terms.

The central reasoning is clear and of significant practical impact: even if the promissory note is formally valid, the jurisdiction clause loses effectiveness if it forms part of a contractual scheme unilaterally imposed by the financial institution. Reading and signing the document does not equate to negotiating its content. The consent required by Article 1093 of the Commercial Code is not deemed to exist when adhesion is the only alternative to obtain credit.

This criterion consolidates a substantive interpretation of express submission and warns that negotiable instruments cannot be used to reproduce contractual imbalances that restrict effective access to justice.

Further to this issue, Article 1093 of the Commercial Code recognizes the possibility of extending territorial jurisdiction through express submission. However, that rule presupposes a free, clear, and negotiated waiver of the legal venue. When the clause is inserted into an adhesion contract, that presumption is weakened.

This interpretation aligns with Article 17 of the Constitution, which guarantees access to prompt and effective justice, and with Article 90 of the Federal Consumer Protection Law, which invalidates clauses that create significant imbalances to the detriment of the adhering party. Imposing a distant jurisdiction as a condition for contracting fully fits within this scenario.

On this basis, the Regional Plenary in Administrative and Civil Matters of the Central-South Region, in precedent PR.A.C.CS. J/19 C (11a.), published in March 2025, held that judges are empowered to decline jurisdiction from the very first ruling when a financial institution files a claim relying on an express submission clause contained in an adhesion contract, in a jurisdiction different from the defendant’s domicile.

The rationale is preventive: admitting the claim and requiring the defendant to appear solely to raise a jurisdictional objection prolongs the economic disadvantage that the case law seeks to prevent.

For the foregoing reasons, the Corporate and Litigation Practice in Commercial and Civil Matters at HG Abogados invites readers who enter into agreements containing such clauses to seek advice from our team of specialists to identify the scope and limits of this mechanism, as well as the potential risks in each specific case.