EUPillar X v Y - Kh. Dendermonde, 29 March 2012

Summary

The claimant sues the defendant in payment of 3 unpaid invoices for the delivery of Christmas trees in England and Wales. The defendant argues it paid these invoices in cash. The defendant contests the international jurisdiction of the court seised and argues that the courts of England and Wales have jurisdiction. The claimant refers to a choice of court clause in favour of the Belgian courts in its general terms and conditions on the back of its invoices. The Dendermonde Commercial Court examines whether the choice of court clause is in a form which accords with practices which the parties have established between themselves (cf. Art. 23(1)(b) Brussels I Regulation). This is the case when the parties regularly encountered the same general terms and conditions during previous transactions. The receiving party is then assumed to have accepted the general terms and conditions of the issuing party in the absence of contestation. The claimant establishes that the parties had a continuous commercial relationship for over 32 years. The documents submitted to the court show that the claimant always made use of the same general terms and conditions. The defendant does not submit any documents that could possibly refute the evidence of the claimant. The general terms and conditions of the seller are drawn up in English, the language of the buyer. The invoices of the seller do not include any reference on the front to the general terms and conditions on the back. This is not an objection, in the view of the Court: every trader should know that invoices usually have general terms and conditions printed on the back. Short critique This is a good example of how the Belgian courts apply art. 23(1)(b) and try to determine whether the parties have established a practice between themselves: here, the lenght of the relationship between the parties (32 years) is decisive.