PIL instrument(s)

Case number and/or case name

A. NV v. S.T. BV - 03/4286 - Kh. Hasselt, 11 February 2004

Details of the court

Belgium, First Instance

Articles referred to by the court

Date of the judgement

10 February 2004

Appeal history

CJEU's case law cited by the court

Summary

The claimant performed construction work on the account of the defendant in Geleen, The Netherlands. Almost all the materials were delivered by the client. The parties entered into an agreement by telefax on 15 May 2003. This agreement referred to the general terms and conditions of the defendant, including an arbitration clause. Art. 1(2)(d) Brussels I Regulation excludes arbitration from the scope of the Regulation. The validity of the arbitration clause is a question of national law. In this particular case, the law applicable to the contract and the law of the forum are the same. The law applicable to the contract is Belgian law, according to Art. 4(2) European Contracts Convention (the characteristic obligation is performed by the Belgian constructor). The validity of the arbitration clause must be considered under Belgian law. Under Belgian law, such a clause is not enforceable as against the other party if a document coming from one of the parties merely refers to the general terms and conditions without containing a copy of those conditions in the document. The construction contract is neither a sales nor a service agreement. The Court applies Art. 5(1)(a) Brussels I Regulation. The “obligation in question” is the obligation to pay the price of the construction works. Under Belgian law, the place of payment can be determined by the terms and conditions of an uncontested invoice. The invoice which is the object of the claim was only partially contested; the place of payment was left uncontested. The defendant had even confirmed it would wire a certain sum into the Belgian bank account of the claimant. Therefore, the courts of Belgium have jurisdiction. Short critique A construction contract is a common form of contract whereby the contractor not only performs construction services but also delivers and sells the materials needed for those services. This is a mixed contract and its characterisation under art. 5(1)(b) Brussels I is unclear. In this judgment, the court decides it is neither a contract for the sale of goods nor a contract for the provision of services and therefore applies art. 5(1)(a).