EUPillar BV Globe Fine Chemicals Holland v. NV Impextraco - 2004/AR/1555

Summary

The buyer lodged an appeal arguing that the Commercial Court of Mechelen did not have jurisdiction to hear the case. The seller invokes a choice of forum clause contained within its general conditions on the invoice. However, before the buyer received the invoice (with the general conditions and the choice of forum clause), he had given notice of a non-conformity. Thus, he did not consent to the general conditions on the invoice and made a reservation as to the acceptance of the invoice itself. The seller fails to prove that previous transactions were submitted to the same general conditions, in order to speak of ‘a practice between parties’. Neither is there a usage in the trade or commerce. Art. 23 therefore cannot be used to establish the jurisdiction of the courts of Mechelen in this case. The seller then turns to the exception to Art. 5(1)(b) (“for the purpose of this provision and unless otherwise agreed, the place of performance shall be …”). This exception is not accepted by the court, since: - the seller gave notice of the non-conformity even before it had received the invoice - the invoice does not mention specific agreements concerning the place of payment - the indication of Belgian account numbers is not sufficient to prove that payment had to take place in Mechelen - it has not been proven that previous transactions had to be paid in Belgium. Short critique Contrary to the Court's analysis, the place of payment is irrelevant for the application of Art. 23(1)(b).