EUPillar NV F.B.B. v. BV N.I. - 02/00489

Summary

The claimant relies on a choice of court clause in its general conditions. Pursuant to Art. 23(1)(b) Brussels I Regulation, such a prorogation agreement shall be in a “form which accords with practices which the parties have established between themselves”. The Court sets a few criteria which are implied in this disposition: a) there must be a sufficiently long trade relationship between the parties; b) this relationship must have existed before the transaction to which dispute relates; c) during this time the same general terms and conditions must have been used by the party relying on them; d) party against whom these terms and conditions are invoked must actually (and repeatedly) have been confronted with them. Merely receiving a document is not sufficient. The party must explicitly refer to this document in an order confirmation, a letter accompanying an invoice, a reminder, previous proceedings, … The claimant is not able to prove for how long exactly its trade relationship with the defendant has been going on. The Court also considers that the claimant never explicitly relied on its general terms and conditions in its correspondence with the defendant. The defendant also stated in the early stages of the dispute that the procedure should be held before a Dutch court, what can be construed as a denial of the forum selection clause. The claimant also fails to prove that the requirements of Art. 23(1)(c) have been fulfilled. A prorogation agreement can be, in international trade or commerce, in a form which accords with a usage of which (i) the parties are or ought to have been aware and (ii) which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned. The choice of forum clause is not valid. The Belgian courts lack jurisdiction. Short critique The Court clearly spells out the conditions that are set in Belgian case law more generally for the validity of choice of court clauses in general terms and conditions of one of the parties under Article 23(1)(b) Brussels I.