1.

in matters relating to a contract. ( 2 ) in the courts for the place of performance of the obligation in Question.”

1. 

First, with regard to the wording of Article 5 (1), the German version, which I quoted earlier, certainly supports the assumption that a dispute over the existence of a contract does not a prìori exclude the jurisdiction of the courts of the place of performance. Versions in other languages are not as clear, especially the French and Italian, on which the appellant focused particular attention and which may not of course be disregarded. However, I do not see how the phrases used there (“en matière contractuelle”, “in materia contrattuale”) should necessarily give rise to the conclusion that the formation of a contract must not be in dispute and that jurisdiction under Article 5 (1) is ruled out where there is a dispute as to the existence of a contract.

2. 

Persuasive authority in favour of an affirmative answer is undoubtedly to be found in the judgment of 14 December 1977 in Case 73/77 Sanders v Van der Putte ([1977] ECR 2383 at p. 2388 et seq.). That case concerned the interpretation of Article 16 (1) of the Convention, which provides:

“The following courts shall have exclusive jurisdiction, regardless of domicile:

It seems that in that case there was a similar dispute over the question whether a tenancy agreement had ever existed. Nevertheless the application of the above-mentioned provision was not ruled out. That is clear from paragraphs 12 to 15 of the decision, in which the following sentence appears:

“The foregoing considerations explain the assignment of exclusive jurisdiction to the courts of the State in which the immovable property is situated in the case of disputes relating to tenancies of immovable property so-called, that is to say, in particular, disputes between lessors and tenants as to the existence or interpretation of leases or to compensation for damage caused by the tenant and to giving up possession of the premises.”

3. 

If it were to be accepted that the presence of a dispute over the existence of a contractual relationship ipso facto excludes an action under Article 5 (1) of the Convention, then it would be possible bv a simple denial on the part of the defendant to render that provision largely ineffective, as well as that contained in Article 5 (3) — jurisdiction in matters relating to ton — where indeed the defendant's defence as a rule consists of denying the existence of a tort. That cannot be practical or what was intended. Although it must be conceded that Article 5(1) constitutes an exception to the general rule contained in Article 2 — jurisdiction of the courts of the defendant's domicile — and consequently it cannot be presumed that the former provision is to be interpreted broadly, vet such considerations may certainly noi lead to an interpretation which would make it possible to render an exceptional provision practically ineffective.

4. 

On the other hand, a plaintiff who invokes jurisdiction under Article 5 (1) of the Convention can hardly be required to give more than a coherent statement of his claim. That was indeed the opinion of the representative of the United Kingdom in stating that the plaintiff must bona fide claim that there is a contractual relationship and, indeed, on the basis of facts which prima facie indicate the existence of a contract.

In this regard the Commission correctly pointed out that recourse to the Convention's jurisdiction rules is not in principle tied to formal conditions or compliance with minimum standards of evidence and that the requirement of writing laid down in Article 17 of the Convention for jurisdiction agreements must rather be regarded as a definite exception. Thus it was held in the judgment of 17 Januarv 1980 in Case 56/79 Zeiger v Salinari ([1980] ECR 89 at p. 97), that an informal agreement as to the place of performance is sufficient for Article 5 (1).

5. 

Further support for the proposition that a dispute over the existence of a contract does not deprive the courts of the place of performance of jurisdiction may be derived from the fact that a court whose jurisdiction is invoked in reliance on the Convention must — as a result of Article 20 of the Convention — examine, of its own motion, the question of its jurisdiction under the provisions of the Convention (see the Jenard Repon on Article 19 of the Convention and Biilow-Böcksiiegel, op.cit, Point III on Anicle 20 of the Convention). That can only mean that all the conditions necessary for the alleged jurisdiction are to be established and also a legal appraisal is to be undertaken. It follows that the same must also be true with regard to the question whether a contract, and with it a contractual place of performance, is to be taken to exist.

In this connection the better view must be that no relevance is to be attached to the fact that the examination of the question of jurisdiction wholly or partly overlaps with the examination of the substance of the claim. The possibility that the examination of the facts founding jurisdiction may also affect the determination of the substantive claim is not to be ruled out in other cases either. One needs only to look at the example given by the Commission, of a jurisdiction agreement in a firm's general trading conditions, where the examination of the question whether the agreement was validly concluded may also prejudge questions relating to the claim, since in many cases other matters are determined in the trading conditions. Otherwise a distinction would be drawn according to whether there was a separate agreement on the place of performance or not, which scarcely seems justified. The view that jurisdiction under the Convention could not be recognized if the examination of the question of jurisdiction wholly or partly overlapped with the examination of the facts founding the claim would not be compatible with the principle, clearly expressed in the Jenard Repon, that the Convention should be given a wide application.

It is clear, however, that the judicial practice described by the Commission of requiring no evidence of the facts founding jurisdiction if they are at the same time ingredients of the substantive claim would also be incompatible with the rules of the Convention, precisely because those rules require an examination as to jurisdiction by the court of its own motion and with it. if necessary, the hearing of evidence limited to the determination of jurisdiction.

6. 

Finally, it should not be forgotten that the interpretation which I have set out does not lay an unreasonable burden on defendants who may find themselves obliged to defend themselves before foreign courts. Thus the second paragraph of Article 20 of the Convention, which provides that the court shall stay the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings in sufficient time to enable him to arrange for his defence, ensures that the defendant has an opportunity to submit his point of view. Moreover, if he is sued before the courts of a Contracting State in which he is not domiciled, he is not obliged to attend and enter an appearance. In such a case the first paragraph of Article 20 of the Convention requires the court to examine the question of juridiction of its own motion. In this respect an alleged fact cannot be regarded as admitted on account of the defendant's failure to enter an appearance; on the contrary full proof of the facts founding jurisdiction is to be required of the plaintiff (see Billow-Böckstiegel, op. cit).

7. 

Without going into the problem raised by the United Kingdom, as to whether in fact jurisdiction which has been correctly invoked under Article 5 (1) of the Convention still exists even if the claim that there is no contract is later shown to be justified, I propose that the question submitted by the Bundesgerichtshof should be answered as follows:

A plaintiff may invoke the jurisdiction of the courts of the place of performance in accordance with Article 5 (1) of the Convention even when the existence of the contract on which the claim is based is in dispute between the parties.