Comments on: French Supreme Court Strikes Down One Way Jurisdiction Clause

By: Bruno Trotteyn

Bruno Trotteyn — Thu, 11 Oct 2012 19:19:01 +0000

Re ‘material’: this was a wrong translation from the French word ‘matériel’. What I meant was ‘substantive law’ (as opposed to procedural law and PIL). Funny to read how it was picked up, though.

By: Adrian Briggs

Adrian Briggs — Thu, 11 Oct 2012 12:04:02 +0000

With respect, I am not. I am saying that this French material is irrelevant to the application of Article 23, in just the same way that English material – for example, that unless there is consideration there is no enforceable contract – is irrelevant to it.

By: Bruno Trotteyn

Bruno Trotteyn — Thu, 11 Oct 2012 11:31:51 +0000

My reaction was just my first idea, but in my opinion, you are overlooking material French law of obligations, that provides that obligations conditional upon an event that one party entirely controls is void (read the Civil Code, articles 1170 and 1174).

By: Adrian Briggs

Adrian Briggs — Thu, 11 Oct 2012 09:15:40 +0000

Yes; and the latter, not the former. The idea that an English court should have apply Lithuanian rules of private international law in order to work out which rules of (probably foreign) law tell it whether the parties agreed to the jurisdiction of the court in Vilnius is, surely, one of the sillier things to have been seen in recent years. These things can be defined at a European level; one rule for all. Anything else seems almost dementing.

By: Gilles Cuniberti

Gilles Cuniberti — Thu, 11 Oct 2012 09:11:58 +0000

One argument could indeed be that since 1) jurisdiction agreements are good, and 2) all European courts are equal and to be trusted, conditions of validity should be limited to the minimum.

But if you still want to reserve “fraud” or “oppression”, then you are back in square one: you must define these doctrines. This will be done either by looking at the applicable national law, or by defining it at the European level.

By: Adrian Briggs

Adrian Briggs — Thu, 11 Oct 2012 09:02:58 +0000

Protection from what ? I agree that if we are concerned with jurisdiction agreements for Burma or Paraguay we might want to be a bit more cautious, but inside Europe, what is there to be protected from ? The Regulation tells us who has jurisdictional privileges; and it otherwise says that those who agree in writing are bound by what they agreed to (in cases of oppression or fraud, it is easy enough to say that there was no agreement in the relevant sense).

By: Gilles Cuniberti

Gilles Cuniberti — Thu, 11 Oct 2012 08:59:24 +0000

I think that Benincasa could indeed be read as an authority for the proposition that the clause is only governed by the Regulation. But except for officially weaker parties identified by the Regulation, this leads to the exclusion of all mechanisms of protection of the parties. And it is not only the civil law which has generated them: there is for instance the unconscionability doctrine in the U.S.

By: Adrian Briggs

Adrian Briggs — Thu, 11 Oct 2012 08:48:57 +0000

Yes, I would. This is admittedly not the view I once had, but reading the material generated by the Court, I think it is right; and when you look at the alternative, I think it makes sense. I also think that there is no need to look on the written agreement to accept or to forgo jurisdiction as a contractual, as distinct from a formal, act; and to assess it is contractual terms is to distort it. For this reason, I think that the Hague Convention goes off in a silly direction, at least if its mechanisms are to displace those currently found in Art 23; and it follows that the lame projection of its ideas into the draft amendments to Brussels I is a giant step backwards, a real disaster. The more one says that jurisdiction depends on finding there to be a valid contract (all the more so where this contract is to be assessed by using rules of the conflict of laws of the law of the state in which the designated court sits, for heaven’s sake), the odder and more complex the question becomes. What is wrong with asking whether the party to be bound by/to the jurisdiction in question agreed in writing to it ? And then leaving the question of jurisdiction at that ? (Other questions, however, such as whether a person bound themselves in a particular way, are separate from asking whether the particular court had jurisdiction, and can be left for another day.)

By: Gilles Cuniberti

Gilles Cuniberti — Thu, 11 Oct 2012 08:21:18 +0000

Adrian, would you say that, as long as Article 23 has not been amended, the validity of the clause was solely governed by the Brussels I Regulation?

By: Adrian Briggs

Adrian Briggs — Thu, 11 Oct 2012 08:00:07 +0000

But the comment from Bruno Trotteyn demonstrates perfectly that the clause was exclusive for the kinds of dispute (customer v bank) which fell within it; and the difference between ‘common law’, and French law, is surely not the point: the interpretation and application of these clauses is not to be filtered through the individual, idiosyncratic mesh of national law rules on substantive contracts. Article 23 tells us just to read the words of the agreement, assuming them to be in proper form, and to leave it at that.