Oberster Gerichtshof, Urteil vom 01/03/2011 10 Ob 9/11p P***** Gesellschaft mbH / S*****
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2011:0100OB00009.11P.0301.000
Date: 2011-03-01
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82011AT0301(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Austrian claimant brought an action before the Landesgericht of Klagenfurt (AT) against the defendant for payment of trade receivables. In order to establish the jurisdiction of the court, it invoked a jurisdiction clause contained in the order confirmation sent to the defendant. The defendant challenged the international jurisdiction. It claimed that the jurisdiction clause did not meet the formal requirements of Article 23(1) Brussels I Regulation. The Landesgericht of Klagenfurt held that the jurisdiction agreement was valid. The defendant lodged an extraordinary appeal on a point of law against this to the OGH (AT).
The OGH upholds the judgment of the Landesgericht. It first considers the requirements for a valid conclusion of a jurisdiction agreement in Article 23(1) Brussels I Regulation. Its aim is to prevent jurisdiction agreements being included unnoticed into the contract relationship and to protect the other contracting party from surprising forums. If a contract is concluded by offer and acceptance in different contractual documents, a clear reference to the general terms and conditions of business of one of the parties suffices for a consensus on the jurisdiction agreement contained therein, if the other party could pursue this reference upon exercise of normal care. The jurisdiction clause, which was written in English, was found in the first line of the footnote on the order confirmation of the claimant and directly beside the signature of the defendant.
The OGH considers this to be sufficient. The validity of the jurisdiction agreement is not excluded by the fact that it was written in English. The use of terms of business written in another language is sufficient if it may be expected that the contractual partner has the knowledge of the language required to understand them.