EUPillar L.C.I. SARL v R.K. BVBA - 2012/AR/124

Summary

The appellant argues that the first judge of the Commercial Court of Tongeren, Belgium, did not have jurisdiction to take cognisance of the case. The respondent refers to a choice of court clause in its general terms and conditions. The clause was printed on the back of a documented attached to an order confirmation. The mention of the general terms and conditions on the front of this document did not refer explicitly to the choice of court clause which appeared on the back among the other terms and conditions. The mention “general terms and conditions of sale overleaf” had been signed for approval by the appellant. The first judge decided that there was a forum selection clause in writing in accordance with Art. 23(1)(a) Brussels I Regulation. The Court of Appeal, however, decides that there is no agreement conferring jurisdiction in writing. A simple reference to the general conditions of sale on the back, including a choice of court clause and a choice of law clause, may not be interpreted as an approval or acceptance of these clauses. The Court of Appeal then examines whether there is a practice which the parties have established between themselves within the meaning of Art. 23(1)(b) Brussels I Regulation. The delivery of the goods took place in two phases. The invoices relating to the first phase had already been paid by the appellant. The Court of Appeal decides this evidence does not suffice to establish a practice between the parties. Therefore, the Belgian courts lack jurisdiction. The Courts of France have jurisdiction on the basis of the general rule of Art. 2 Brussels I Regulation. The Antwerp Court of Appeal rescinds the judgment of the Commercial Court of Tongeren. Short critique This case is concerned with the following question: does it suffice when a signed agreement refers to general terms and conditions on the back of a document, including a choice of court clause, without explicitly referring to the forum selection clause itself? In case 24/76, Salotti di Colzani v. Rüwa, the Court of Justice ruled that “Where a clause conferring jurisdiction is included among the general conditions of sale of one of the parties, printed on the back of a contract, the requirement of a writing under the first paragraph of Art. 17 of the Brussels Convention is fulfilled only if the contract signed by both parties contains an express reference to those general conditions; In the case of a contract concluded by reference to earlier offers, which were themselves made with reference to the general conditions of one of the parties including a clause conferring jurisdiction, the requirement of a writing under the first paragraph of Art. 17 of the Brussels Convention is satisfied only if the reference is express and can therefore be checked by a party exercising reasonably care.” It seems that the present decision of the Antwerp Court of Appeal imposes a requirement which is not there in the text of the decision of the Court of Justice. It is clear from the first paragraph of the Court of Justice’s decision that it is not required that the contract refers explicitly to the choice of court clause on the back.