ECJ The way in which article 17 of the Convention of 27 September 1968 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 article 17 is to ensure that the consensus between the parties is in fact established.
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 convention of 27 september 1968 is only fulfilled if the contract signed by the two parties includes an express reference to those general conditions.
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 of 27 september 1968 is satisfied only if the reference is express and can therefore be checked by a party exercising reasonable care.
C-24/76, R-24/76, [1976] EUECJ R-24/76, [1976] ECR 1831
Bailii
Convention of 27 September 1968 on jurisdiction and the enforcement of Judgments in Civil and Commercial Matters
European
Cited by:
Cited – Bols Distilleries VB (T/A As Bols Royal Distilleries) and Another v Superior Yacht Services Ltd PC 11-Oct-2006
(Gilbraltar) The parties disputed the management contract for a racing yacht, and also the juridiction of the Supreme Court of Gibraltar to hear the case. Bols said that under regulation 2(1) Gibraltar had no jurisdiction.
Held: The English . .
Cited – Goldman Sachs International v Novo Banco SA SC 4-Jul-2018
A banking facility was provided under a contract applying English law and jurisdiction. The parties now disputed whether on an assignment the dispute was to be resolved under Portuguese law.
Held: Recognition in the United Kingdom of measures . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 July 2021; Ref: scu.214510