Keywords
Summary

Keywords

1 . CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS - CONFERMENT OF JURISDICTION BY CONSENT - EFFECT - VALIDITY - REQUIREMENTS - STRICT CONSTRUCTION - CONSENSUS BETWEEN PARTIES

( CONVENTION OF 27 SEPTEMBER 1968 , ARTICLE 17 )

2 . CONVENTION OF 27 SEPTEMBER 1968 - JURISDICTION - CONFERMENT OF JURISDICTION BY CONSENT - FORM - ORALLY CONCLUDED CONTRACT - VENDOR ' S CONFIRMATION IN WRITING - NOTIFICATION OF GENERAL CONDITIONS OF SALE - CLAUSE CONFERRING JURISDICTION - NEED FOR ACCEPTANCE IN WRITING BY THE PURCHASER - ORAL AGREEMENT WITHIN THE FRAMEWORK OF A CONTINUING TRADING RELATIONSHIP - IMPLIED ACCEPTANCE OF THE CLAUSE CONFERRING JURISDICTION

( CONVENTION OF 27 SEPTEMBER 1968 , ARTICLE 17 )

Summary

1 . THE WAY IN WHICH ARTICLE 17 OF THE CONVENTION OF 27 SEPTEMBER 1968 IS TO BE APPLIED MUST BE INTERPRETED IN THE LIGHT OF THE EFFECT OF THE CONFERMENT OF JURISDICTION BY CONSENT , WHICH IS TO EXCLUDE BOTH THE JURISDICTION DETERMINED BY THE GENERAL PRINCIPLE LAID DOWN IN ARTICLE 2 AND THE SPECIAL JURISDICTIONS PROVIDED FOR IN ARTICLES 5 AND 6 OF THE CONVENTION . IN VIEW OF THE CONSEQUENCES THAT SUCH AN OPTION MAY HAVE ON THE POSITION OF THE PARTIES TO THE ACTION , THE REQUIREMENTS SET OUT IN ARTICLE 17 GOVERNING JURISDICTION MUST BE STRICTLY CONSTRUED . BY MAKING SUCH VALIDITY SUBJECT TO THE EXISTENCE OF AN ' AGREEMENT ' BETWEEN THE PARTIES , ARTICLE 17 IMPOSES UPON THE COURT BEFORE WHICH THE MATTER IS BROUGHT THE DUTY OF EXAMINING , FIRST , WHETHER THE CLAUSE CONFERRING JURISDICTION UPON IT WAS IN FACT THE SUBJECT OF A CONSENSUS BETWEEN THE PARTIES , WHICH MUST BE CLEARLY AND PRECISELY DEMONSTRATED , THE PURPOSE OF THE FORMAL REQUIREMENTS IMPOSED BY ARTICLE 17 BEING TO ENSURE THAT THE CONSENSUS BETWEEN THE PARTIES IS IN FACT ESTABLISHED .

2 . IN THE CASE OF AN ORALLY CONCLUDED CONTRACT , THE REQUIREMENTS OF THE FIRST PARAGRAPH OF ARTICLE 17 OF THE CONVENTION OF 27 SEPTEMBER 1968 AS TO FORM ARE SATISFIED ONLY IF THE VENDOR ' S CONFIRMATION IN WRITING ACCOMPANIED BY NOTIFICATION OF THE GENERAL CONDITIONS OF SALE HAS BEEN ACCEPTED IN WRITING BY THE PURCHASER . THE FACT THAT THE PURCHASER DOES NOT RAISE ANY OBJECTIONS AGAINST A CONFIRMATION ISSUED UNILATERALLY BY THE OTHER PARTY DOES NOT AMOUNT TO ACCEPTANCE ON HIS PART OF THE CLAUSE CONFERRING JURISDICTION , UNLESS THE ORAL AGREEMENT COMES WITHIN THE FRAMEWORK OF A CONTINUING TRADING RELATIONSHIP BETWEEN THE PARTIES WHICH IS BASED ON THE GENERAL CONDITIONS OF ONE OF THEM , AND THOSE CONDITIONS CONTAIN A CLAUSE CONFERRING JURIDICTION .