EUPillar X, Y and Z v T. - Antwerpen, 17 June 2013

Summary

The appellants, i.e. the receivers of the bankruptcy of M., sued the respondent for payment of outstanding invoices before the Commercial Court of Antwerp. The appellants invoke the general terms and conditions of M. which include a forum selection clause in favour of the courts of Antwerp. The validity of the forum selection clause must be determined in accordance with Art. 23(1) Brussels I Regulation. Contrary to Belgian law, the absence of protest against the general terms and conditions of another contracting party does not imply the acceptance of the forum selection clause included therein – except where that clause is in a form which accords with practices which the parties have established between themselves (cf. Art. 23(1)(b) Brussels I Regulation). The party which relies on its general terms and conditions must prove that the parties regularly encountered the same general conditions, so that they are deemed to have knowledge of the forum selection clause included therein. The plaintiff must establish that the parties had prior dealings other the transactions underlying the claim. In the present case, the appellants do not submit any previous invoices. Moreover, the respondent alleges that its own general terms and conditions apply. The parties entered into a “vendor’s agreement” which refers to the general terms and conditions of the respondent. The first judge correctly dismissed the case for lack of jurisdiction. This decision is confirmed by the Court of Appeal.