JURE SUMMARY

An Austrian plaintiff concluded a "works contract" with a Slovakian defendant which included a jurisdiction agreement in favour of the courts of Vienna (AT). There are, however, several courts in Vienna which could be considered as the court of first instance for the action. The plaintiff applied to the OGH (AT) for a determination of the territorially competent court, stating that while the Austrian courts were internationally competent according to the jurisdiction agreement, no territorially competent court was available. The OGH dismisses the application. The so called "ordination", the determination by the court of a territorially competent court, requires that, while the Austrian courts have jurisdiction, no court is territorially competent. Here, a territorially competent court is not lacking; furthermore, the territorially competent court can be determined from the jurisdiction agreement. According to Article 23 Brussels I Regulation, a jurisdiction agreement is sufficiently determined if, although the competent court is not expressly stated in the agreement, it can be determined from the circumstances at the time when the action is brought. It is, therefore, permissible to allow contractual parties the possibility to select the competent court from two or more courts specified in the jurisdiction agreement. If such agreement only specifies the international jurisdiction of a specific State, then the territorially competent court must be determined according to the procedural law of this State. According to Austrian law, in the case of a jurisdiction agreement in favour of the courts of a location at which more than one court are available, the plaintiff is then entitled to select the territorially competent court from among these courts. There is no need for the determination of a territorially competent court by the OGH, meaning that the application for the selection of a court by way of the process of "ordination" is not permissible.