Oberster Gerichtshof, Urteil vom 31/01/2002 6 Ob 275/01m
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2002:RS0116148
Date: 2002-01-31
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82002AT0131(04)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff bank, domiciled in Prague (CZ), and an Austrian company agreed in a skeleton contract for a bank credit to the following: "This contract is formed under Czech law and the court of competent jurisdiction is the commercial district court in Prague." The plaintiff pleaded before an Austrian court for payment of a certain amount. The defendant raised an objection on the lack of jurisdiction of the court seised in view of the jurisdiction agreement, by which, according to the defendant, exclusive jurisdiction is granted to a certain court in Prague. The plaintiff claimed that it was not an exclusive, but rather an elective jurisdiction that was agreed upon. The lower court dismissed the case for lack of international jurisdiction and for lack of domestic jurisdiction. The appellate court sustained the plaintiff's appeal and overruled the objections raised by the defendant.
The OGH (AT) denies the defendant's second appeal. Within the scope of application of the Brussels Convention, jurisdiction agreements between parties, of which at least one is domiciled or has its habitual residence in a Contracting State, that designate the court of a Contracting State as the court of competent jurisdiction operate to give that court exclusive jurisdiction. (Article 17(1) Brussels Convention). This provision is to be interpreted as a rebuttable presumption that the agreement speaks of an exclusive jurisdiction, and one should assume as such when in doubt. Article 17 of the Brussels Convention does not apply directly to prorogation of a court in a non-contracting State. As the Czech Republic is not a Contracting State, the provisions of the Brussels Convention can only be applied analogously. It is possible to rebut the assumption of exclusive jurisdiction in such an analogous application. After reviewing the facts of the case, the OGH comes to the conclusion that an elective jurisdiction was agreed upon in the present case.