Case Law 1968 Brussels Convention

Article 17 of the 1968 Brussels Convention

 


Jurisdiction clause [Article 17 (1)]

ECJ 9 November 2000 ‘Coreck v Handelsveem’ (Case C-387/98, ECR 2000 p. I-09337)

1. The words '.. have agreed .. ' in the first sentence of the first paragraph of Article 17 of the 1968 Brussels Convention cannot be interpreted as meaning that it is necessary for a jurisdiction clause to be formulated in such a way that the competent court can be determined on its wording alone. It is sufficient that the clause states the objective factors on the basis of which the parties have agreed to choose a court or the courts to which they wish to submit disputes which have arisen or which may arise between them. Those factors, which must be sufficiently precise to enable the court seised to ascertain whether it has jurisdiction, may, where appropriate, be determined by the particular circumstances of the case (see para. 15 and operative part 1).

2. Article 17 of the 1968 Brussels Convention only applies if, first, at least one of the parties to the original contract is domiciled in a Contracting State and, secondly, the parties agree to submit any disputes to a court or the courts of a Contracting State. A court situated in a Contracting State must, if it is seised notwithstanding a jurisdiction clause designating a court in a third country, assess the validity of the clause according to the applicable law, including conflict of laws rules, where it sits (see paras 19, 21 and operative part 2).

 

ECJ 16 March 1999 ‘Castelletti v Trumpy’ (Case C-159/97, ECR 1999 p. I-01597)

1. Whilst the mere fact that a clause conferring jurisdiction is printed on the reverse of a contract drawn up on the commercial paper of one of the parties does not of itself satisfy the requirements as to written form laid down in Article 17 of the 1968 Brussels Convention, it is otherwise where the text of the contract signed by both parties itself contains an express reference to general conditions which include a clause conferring jurisdiction. (...)

4. The choice of court in a jurisdiction clause may be assessed only in the light of considerations connected with the requirements laid down in Article 17 of the Convention of 27 September 1968. Considerations about the links between the court designated and the relationship at issue, about the validity of the clause, or about the substantive rules of liability applicable before the chosen court are unconnected with those requirements.

 

ECJ 3 July 1997 ‘Benincasa v Dentalkit’ (Case C-269/95, ECR 1997 p. I-03767)

Article 17 of the 1968 Brussels Convention sets out to designate, clearly and precisely, a court in a Contracting State which is to have exclusive jurisdiction in accordance with the consensus formed between the parties, which is to be expressed in accordance with the strict requirements as to form laid down therein. The legal certainty which that provision seeks to secure could easily be jeopardized if one party to the contract could frustrate that rule simply by claiming that the whole of the contract which contained the clause was void on grounds derived from the applicable substantive law. It follows that the court of a Contracting State which is designated in a jurisdiction clause validly concluded under the first paragraph of Article 17 also has exclusive jurisdiction where the action seeks in particular a declaration that the contract containing that clause is void. Furthermore, it is for the national court to determine which disputes fall within the scope of the clause conferring jurisdiction invoked before it and, consequently, to determine whether that clause also covers any dispute relating to the validity of the contract containing it.

 

ECJ 20 February 1997 ‘MSG v SARL’ (Case C-106/95, ECR 1997 p. I-00911)

The Convention must be interpreted as meaning that an oral agreement on the place of performance which is designed not to determine the place where the person liable is actually to perform the obligations incumbent upon him, but solely to establish that the courts for a particular place have jurisdiction, is not governed by Article 5(1) of the Convention, but by Article 17, and is valid only if the requirements set out therein are complied with. Whilst the parties are free to agree on a place of performance for contractual obligations which differs from that which would be determined under the law applicable to the contract, without having to comply with specific conditions as to form, they are nevertheless not entitled, having regard to the system established by the Convention, to designate, with the sole aim of specifying the courts having jurisdiction, a place of performance having no real connection with the reality of the contract at which the obligations arising under the contract could not be performed in accordance with the terms of the contract.

 

ECJ 10 March 1992 ‘Powell v Petereit’ (Case C-214/89, ECR 1992 p. I-01745)

1. The concept of "agreement conferring jurisdiction" in Article 17 of the 1968 Brussels Convention of 27 September 1968 o must be regarded as an independent concept. A clause contained in the statutes of a company limited by shares and adopted in accordance with the provisions of the applicable national law and those statutes themselves conferring jurisdiction on a court of a Contracting State to settle disputes between that company and its shareholders constitutes an agreement conferring jurisdiction.

The formal requirements laid down in Article 17 of the Convention must be considered to be complied with in regard to any shareholder, irrespective of how the shares were acquired, if the clause conferring jurisdiction is contained in the statutes of the company and those statutes are lodged in a place to which the shareholder may have access or are contained in a public register.

2. The requirement that a dispute arise in connection with a particular legal relationship, for the solution of which Article 17 of the Convention permits the assignment of jurisdiction by agreement, is satisfied if the clause conferring jurisdiction contained in the statutes of a company may be interpreted by the national court, which has exclusive competence in that regard, as referring to the disputes between the company and its shareholders as such.

 

ECJ 11 November 1986 'Iveco Fiat v Van Hool' (Case 313/85, ECR 1986 Page 03337)

Article 17 of the 1968 Brussels Cconvention must be interpreted as meaning that where a written agreement containing a jurisdiction clause and stipulating that the agreement can be renewed only in writing has expired but has continued to serve as the legal basis for the contractual relations between the parties, the jurisdiction clause satisfies the formal requirements in Article 17 if, under the law applicable, the parties could validly renew the original agreement otherwise than in writing, or if, conversely, one of the parties has confirmed in writing either the jurisdiction clause or the set of terms which has been tacitly renewed and of which the jurisdiction clause forms part, without any objection from the other party to whom such confirmation has been notified.

 

ECJ 24 June 1986 'Anterist v Crédit Lyonnais' (Case 22/85, ECR 1986 p. age 01951)

Since Article 17 of the 1968 Brussels Convention embodies the principle of the parties' autonomy to determine the court or courts with jurisdiction, the third paragraph of that provision must be interpreted in such a way as to respect the parties' common intention when the contract was concluded. Therefore, if an agreement conferring jurisdiction is to be regarded as having been 'concluded for the benefit of only one of the parties', the common intention to confer an advantage on one of the parties must be clear from the terms of the jurisdiction clause or from all the evidence to be found therein or from the circumstances in which the contract was concluded. It follows that an agreement conferring jurisdiction is not to be regarded as falling within the third paragraph of Article 17 of the Convention where all that is established is that the parties have agreed that a court or the courts of the Contracting State in which that party is domiciled are to have jurisdiction.

 

ECJ 11 July 1985 'Berghoefer v ASA' (Case 221/84, ECR 1985 p. 02699)

The first paragraph of Article 17 of the 1968 Brussels Convention must be interpreted as meaning that the formal requirements therein laid down are satisfied if it is established that jurisdiction was conferred by express oral agreement, that written confirmation of that agreement by one of the parties was received by the other and that the latter raised no objection.

 

ECJ 14 July 1983 ‘Gerling v del Tesoro dello Stato’ (Case 201/82, ECR 1983 Page 02503)

The first paragraph of Article 17 of the 1968 Brussels Convention must be interpreted as meaning that where a contract of insurance, entered into between an insurer and a policy-holder and stipulated by the latter to be for his benefit and to ensure for the benefit of third parties to such a contract, contains a clause conferring jurisdiction relating to proceedings which might be brought by such third parties, the latter, even if they have not expressly signed the said clause, may rely upon it provided that, as between the insurer and the policy-holder, the condition as to writing laid down by Article 17 of the Convention has been satisfied and provided that the consent of the insurer in that respect has been clearly manifested.

 

ECJ 24 June 1981 'Elefanten Schuh v Jacqmain' (Case 150/80, ECR 1981 p. 01671)

Since the aim of Article 17 of the 1968 Brussels Convention is to lay down the formal requirements which agreements conferring jurisdiction must meet, Contracting States are not free to lay down formal requirements other than those contained in the Convention. When those rules are applied to provisions concerning the language to be used in an agreement conferring jurisdiction they imply that the legislation of a Contracting State may not allow the validity of such an agreement to be called in question solely on the ground that the language used is not that prescribed by that legislation.

 

ECJ 17 January 1980 ‘Zelger v Salinitri’ (Case 56/79, ECR 1980 Page 00089)

The provisions of Article 5(1) of the 1968 Brussels Convention, to the effect that in matters relating to a contract a defendant domiciled in a Contracting State may be sued in the courts for the place of performance of the obligation in question, introduce a criterion for jurisdiction, the selection of which is at the option of the plaintiff and which is justified by the existence of a direct link between the dispute and the court called upon to take cognizance of it. By contrast, Article 17 of the Convention, which provides for the exclusive jurisdiction of the court designated by the parties in accordance with the prescribed form, puts aside both the rule of general jurisdiction - provided for in Article 2 - and the rules of special jurisdiction - provided for in Article 5 - and dispenses with any objective connexion between the legal relationship in dispute and the court designated. It thus appears that the jurisdiction of the court for the place of performance and that of the selected court are two distinct concepts and only agreements selecting a court are subject to the requirements of form prescribed by Article 17 of the Convention.

 

ECJ 13 November 1979 ‘Sanicentral v René Collin’ (Case 25/79, ECR 1979 Page 03423)

Articles 17 and 54 of the 1968 Brussels Convention must be interpreted to mean that, in judicial proceedings instituted after the coming into force of the Convention, clauses conferring jurisdiction included in contracts of employment concluded prior to that date must be considered valid even in cases in which they would have been regarded as void under the national law in force at the time when the contract was entered into.

 

ECJ 9 November 1978 ‘Meeth v Glacetal' (Case 23/78, ECR 1978 p. 021331)

Although, with regard to an agreement conferring jurisdiction, Article 17 of the 1968 Brussels Convention, as it is worded, refers to the choice by the parties to a contract of a single court or the courts of a single State, that wording cannot be interpreted as prohibiting an agreement under which the two parties to a contract, who are domiciled in different States, can be sued only in the courts of their respective States.

 

ECJ 14 December 1976 ‘Segoura v Bonakdarian' (Case 25-76, ECR 1976 Page 01851)

1. The way in which Article 17 of the 1968 Brussels Convention is to be applied must be interpreted in the light of the effect of the conferment of jurisdiction by consent, which is to exclude both the jurisdiction determined by the general principle laid down in Article 2 and the special jurisdictions provided for in Articles 5 and 6 of the Convention. In view of the consequences that such an option may have on the position of the parties to the action, the requirements set out in Article 17 governing jurisdiction must be strictly construed. By making such validity subject to the existence of an 'agreement' between the parties, Article 17 imposes upon the court before which the matter is brought the duty of examining, first, whether the clause conferring jurisdiction upon it was in fact the subject of a consensus between the parties, which must be clearly and precisely demonstrated, the purpose of the formal requirements imposed by Article 17 being to ensure that the consensus between the parties is in fact established.

2. In the case of an orally concluded contract, the requirements of the first paragraph of Article 17 of the 1968 Brussels Convention as to form are satisfied only if the vendor's confirmation in writing accompanied by notification of the general conditions of sale has been accepted in writing by the purchaser. The fact that the purchaser does not raise any objections against a confirmation issued unilaterally by the other party does not amount to acceptance on his part of the clause conferring jurisdiction, unless the oral agreement comes within the framework of a continuing trading relationship between the parties which is based on the general conditions of one of them, and those conditions contain a clause conferring jurisdiction.

 

ECJ 14 December 1976 ‘Salotti v Rüwa’ (Case 24-76, ECR 1976 Page 01831)

1. The way in which Article 17 of the 1968 Brussels Convention is to be applied must be interpreted in the light of the effect of the conferment of jurisdiction by consent, which is to exclude both the jurisdiction determined by the general principle laid down in Article 2 and the special jurisdictions provided for in Articles 5 and 6 of that Convention. In view of the consequences that such an option may have on the position of the parties to the action, the requirements set out in Article 17 governing the validity of clauses conferring jurisdiction must be strictly construed.

By making the validity of clauses conferring jurisdiction subject to the existence of an 'agreement ' between the parties, Article 17 imposes on the court before which the matter is brought the duty of examining, first, whether the clause conferring jurisdiction upon it was in fact the subject of a consensus between the parties, which must be clearly and precisely demonstrated, for the purpose of the formal requirements imposed by Aarticle 17 is to ensure that the consensus between the parties is in fact established.

2. In the case of a clause conferring jurisdiction, which is included among the general conditions of sale of one of the parties, printed on the back of the contract, the requirement of a writing under the first paragraph of Article 17 of the 1968 Brussels Convention is only fulfilled if the contract signed by the two parties includes an express reference to those general conditions.

3. In the case of a contract concluded by reference to earlier offers, which were themselves made with reference to the general conditions of one of the parties including a clause conferring jurisdiction, the requirement of a writing under the first paragraph of Article 17 of the Convention is satisfied only if the reference is express and can therefore be checked by a party exercising reasonable care.

 


Set off and jurisdiction clause


ECJ 7 March 1985 'Spitzley v Sommer Exploitation' (Case 48/84, ECR 1985 p. 00787)

The court of a Contracting State before which the applicant, without raising any objection as to the court's jurisdiction, enters an appearance in proceedings relating to a claim for a set-off which is not based on the same contract or subject-matter as the claims in his application and in respect of which there is a valid agreement conferring exclusive jurisdiction on the courts of another Contracting State within the meaning of Article 17 of the 1968 Brussels Convention has jurisdiction by virtue of Article 18 of that Convention.

 

ECJ 9 November 1978 ‘Meeth v Glacetal' (Case 23/78, ECR 1978 p. 021331)

1. Although, with regard to an agreement conferring jurisdiction, Article 17 of the 1968 Brussels Convention, as it is worded, refers to the choice by the parties to a contract of a single court or the courts of a single State, that wording cannot be interpreted as prohibiting an agreement under which the two parties to a contract, who are domiciled in different States, can be sued only in the courts of their respective States.

2. Having regard to the need to respect individuals' right of independence, upon which Article 17 is based, and the need to avoid superfluous procedure, which forms the basis of the Convention as a whole, the first paragraph of Article 17 cannot be interpreted as preventing a court before which proceedings have been instituted pursuant to a clause of the type described above from taking into account a claim for a set-off connected with the legal relationship in dispute if such court considers that course to be compatible with the letter and spirit of the clause conferring jurisdiction.


Form wich accords with usage in international trade or commerce [Article 17 (1)(c)

ECJ 16 March 1999 ‘Castelletti v Trumpy’ (Case C-159/97, ECR 1999 p. I-01597)

The third case mentioned in the second sentence of the first paragraph of Article 17 of the 1968 Brussels Convention is to be interpreted as follows:

- The contracting parties' consent to the jurisdiction clause is presumed to exist where their conduct is consistent with a usage which governs the area of international trade or commerce in which they operate and of which they are, or ought to have been, aware.

- The existence of such a usage, which must be determined in relation to the branch of trade or commerce in which the parties to the contract operate, is established where a particular course of conduct is generally and regularly followed by operators in that branch when concluding contracts of a particular type. It is not necessary for such a course of conduct to be established in specific countries or, in particular, in all the Contracting States. In addition, in establishing the existence of a usage, although any publicity which might be given in associations or specialised bodies to the standard forms on which a jurisdiction clause appears may help to prove that a practice is generally and regularly followed, such publicity cannot be a requirement. Furthermore, a course of conduct satisfying the conditions indicative of a usage does not cease to be a usage because it is challenged before the courts, whatever the extent of the challenges, provided that it still continues to be generally and regularly followed in the trade with which the type of contract in question is concerned.

- The specific requirements covered by the expression `form which accords' must be assessed solely in the light of the commercial usages of the branch of international trade or commerce concerned, without taking into account any particular requirements which national provisions might lay down.

- Awareness of the usage must be assessed with respect to the original parties to the agreement conferring jurisdiction, their nationality being irrelevant in this regard. Awareness of the usage will be established when, regardless of any specific form of publicity, in the branch of trade or commerce in which the parties operate a particular course of conduct is generally and regularly followed in the conclusion of a particular type of contract, so that it may be regarded as an established usage.

 

ECJ 20 February 1997 ‘MSG v SARL’ (Case C-106/95, ECR 1997 p. I-00911)

1. The third hypothesis in the second sentence of the first paragraph of Article 17 of the 1968 Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters must be interpreted as meaning that, under a contract concluded orally in international trade or commerce, an agreement conferring jurisdiction will be deemed to have been validly concluded under that provision by virtue of the fact that one party to the contract did not react to a commercial letter of confirmation sent to it by the other party to the contract or repeatedly paid invoices without objection where those documents contained a pre-printed reference to the courts having jurisdiction, provided that such conduct is consistent with a practice in force in the field of international trade or commerce in which the parties in question operate and the latter are aware or ought to have been aware of the practice in question.

In this regard, a practice exists in a branch of international trade or commerce in particular where a particular course of conduct is generally followed by contracting parties operating in that branch when they conclude contracts of a particular type. The fact that the contracting parties were aware of that practice is made out in particular where they had previously had trade or commercial relations between themselves or with other parties operating in the branch of trade or commerce in question or where, in that branch, a particular course of conduct is generally and regularly followed when concluding a certain type of contract, with the result that it may be regarded as being a consolidated practice.

2. The Convention must be interpreted as meaning that an oral agreement on the place of performance which is designed not to determine the place where the person liable is actually to perform the obligations incumbent upon him, but solely to establish that the courts for a particular place have jurisdiction, is not governed by Article 5(1) of the Convention, but by Article 17, and is valid only if the requirements set out therein are complied with. Whilst the parties are free to agree on a place of performance for contractual obligations which differs from that which would be determined under the law applicable to the contract, without having to comply with specific conditions as to form, they are nevertheless not entitled, having regard to the system established by the Convention, to designate, with the sole aim of specifying the courts having jurisdiction, a place of performance having no real connection with the reality of the contract at which the obligations arising under the contract could not be performed in accordance with the terms of the contract.

 


Choice of jurisdiction in a bill of lading [Article 17(1)]

ECJ 9 November 2000 ‘Coreck v Handelsveem’ (Case C-387/98, ECR 2000 p. I-09337)

The first paragraph of Article 17 of the 1968 Brussels Convention must be interpreted as meaning that a jurisdiction clause agreed between a carrier and a shipper which appears in a bill of lading is enforceable against a third party bearer of the bill of lading if he succeeded to the rights and obligations of the shipper under the applicable national law when he acquired the bill of lading. If he did not, it must be ascertained whether he accepted that clause having regard to the requirements laid down in that provision (see para. 27 and operative part 3).

 

ECJ 19 June 1984 'Partenreederei v Nova' (Case 71/83, ECR 1984 p. 02417)

A jurisdiction clause contained in the printed conditions on a bill of lading satisfies the conditions laid down by Article 17 of the 1968 Brussels Convention:
- if the agreement of both parties to the conditions containing that clause has been expressed in writing; or
- if the jurisdiction clause has been the subject-matter of a prior oral agreement between the parties expressly relating to that clause, in which case the bill of lading, signed by the carrier, must be regarded as confirmation in writing of the oral agreement; or
- if the bill of lading comes within the framework of a continuing business relationship between the parties, in so far as it is thereby established that the relationship is governed by general conditions containing the jurisdiction clause.
As regards the relationship between the carrier and a third party holding the bill of lading, the conditions laid down by Article 17 of the Convention are satisfied if the jurisdiction clause has been adjudged valid as between the carrier and the shipper and if, by virtue of the relevant national law, the third party, upon acquiring the bill of lading, succeeded to the shipper's rights and obligations.