Višje sodišče v Kopru; 2020-08-28; Cpg 79/2020
Decision by national courts in the field of European Union law — ECLI:SI:VSKP:2020:CPG.79.2020
Date: 2020-08-28
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Slovenia

82020SI0828(52)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Kopru (hereinafter ‘the Court of Appeal’), concerned whether an arbitration clause contained in a distribution agreement bound a party who had not signed that agreement.
The plaintiff had concluded a distribution agreement with the company Ka., which contained a written arbitration clause referring all disputes arising from that agreement to the Stalna arbitraža pri GZS (Permanent Arbitration at the Chamber of Commerce and Industry of Slovenia). Following a corporate reorganisation of Ka. in 2002, the defendant began acting as an intermediary in the distribution chain: the plaintiff delivered goods to, and invoiced, the defendant. When a dispute subsequently arose between the plaintiff and the defendant, the latter objected to the jurisdiction of the Slovenian courts, asserting that all claims derived from the distribution relationship with Ka. and were therefore subject to the arbitration clause.
The Okrožno sodišče (hereinafter ‘the Court of First Instance’) rejected the objection, holding that no valid arbitration agreement existed between the plaintiff and the defendant. The defendant appealed.
The Court of Appeal dismissed the appeal as unfounded. It confirmed that, under established case law and Article 10 of the ZArbit (1), an arbitration agreement must be evidenced in writing, and its existence must be clear and unequivocal. An arbitration clause cannot bind a person who did not sign the agreement containing it. It is insufficient that the defendant allegedly acted as Ka.’s auxiliary or agent or that it participated in the performance of the distribution agreement. An arbitration agreement cannot be extended to a non-signatory merely on the basis of tacit conduct or economic involvement in the same commercial chain.
Accordingly, the defendant cannot rely on the arbitration clause, and the Slovenian courts retain jurisdiction to hear the present claim. Jurisdiction is conferred under Article 5(1)(b) of the new Lugano Convention (2), as the action concerns a contractual obligation relating to the delivery of goods in Slovenia. The Court of Appeal further noted that the plaintiff bases its claim not on the distribution agreement, but on a separate contractual relationship forming the basis of the asserted debt.
The Court of Appeal therefore dismissed the appeal and upheld the decision of the Court of First Instance.
(1) Zakon o arbitraži (Arbitration Act).
(2) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.