Oberster Gerichtshof, Urteil vom 24/11/1999 3 Ob 60/99s
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1999:RS0112769
Date: 1999-11-24
Subject matter: Lugano Convention
Origin: Austria

81999AT1124(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff domiciled in Austria sued the defendant domiciled in Switzerland in an Austrian court for payment of purchase prices. It claimed that the jurisdiction of the court had been contractually agreed by the parties. The plaintiff’s offer contained a jurisdiction clause in favour of the Austrian courts. The order form of the defendant referred to the general conditions of delivery of the Austrian electric-electronic industry according to which the court of the seat of the vendor has jurisdiction for possible disputes. This order letter was countersigned by the plaintiff. The defendant challenged the jurisdiction of the court and requested that the claim be dismissed.
The OGH (AT) considers that the formal requirement in the sense of Article 17(1) second phrase (a) Lugano Convention is also complied with where from separate documents the agreement on the choice of forum appears clearly enough. In particular the written form condition is also complied with by a reference to general conditions which contain a jurisdiction clause, however in this case, the wording of the contract shall refer expressly to these general conditions. In general the written form requirement is also fulfilled where the parties in the wording of their contract refer to an offer which itself referred expressly to general conditions containing a jurisdiction clause. This applies where there is a clear indication which the party can follow when applying normal diligence and where it is established that with the offer referred to, the general conditions containing the jurisdiction clause have actually been transmitted to the other party.