Oberster Gerichtshof, Beschluß vom 28/04/2000 1 Ob 358/99z
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2000:RS0113567
Date: 2000-04-28
Subject matter: Lugano Convention
Origin: Austria

82000AT0428(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, a bank domiciled in Germany, claims from the defendant, a company domiciled in Austria payment of a claim which had been transferred to it from one of the contracting parties of the defendant. However the defendant refers to a letter that the plaintiff sent to it but which was not signed by the plaintiff, in which the jurisdiction of the courts of Stuttgart (DE) is mentioned. The defendant had signed this letter. The Austrian court of first instance considered that this represented a jurisdiction clause pursuant to Article 17 Lugano Convention and rejected its jurisdiction. The court of appeal affirmed this.
The OGH (AT) considers first that Article 17(1)(a) Lugano Convention provides for a written form of choice of forum agreement without determining precisely what is meant by this. In general, separate documents, in which signature does not necessarily need to appear, suffice. Thus this shall also apply to a common document as long as only the identity of the parties is established. After all only the involuntary conclusion of choice of forum agreements shall be avoided. Therefore it is enough that one of the parties in a contract offer, which is not signed but which without a doubt arises from it, offers a certain legal jurisdiction and that the other accepts this offer by signing it. Thus a proper choice of forum agreement is at hand. However the plaintiff can seize any other competent court according to Article 17(4) Lugano Convention, so that the jurisdiction of the court in Austria is established.