EUPillar OLG Karlsruhe, 28.3.2006

Summary

The parties argued about payment claims from a purchase contract. Between the parties there has been concluded a purchase contract including an agreement on jurisdiction in general terms and conditions. The first instance court assumed the international jurisdiction of German courts. The Higher Regional Court affirmed the first instance court’s judgment and held that Art. 23 Brussels required that the parties have mutually agreed on the forum clause. There had to be a clear consensus. It was not sufficient that there has been a unilateral reference to the general terms and conditions by one of the parties. This could only lead to the assumption of a valid forum clause if the other party has explicitly affirmed the clause. Further, the court stated that the correct delivery of the document instituting court proceedings as it was prescribed by foreign procedural law had to be examined by the court charged with the action independently, without the court being obliged to follow the foreign court’s determinations. The court’s statement regarding forum clauses under Art. 23 Brussels I is in accordance with settled case law and therefore is correct. In German scientific literature it is further accepted that the court is independent in considering the correct delivery of the document initiating court proceedings. In this regard, the judgment can also be considered correct.