OGH; 2022-09-29; 3 Ob 164/22x
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2022:0030OB00164.22X.0929.000
Date: 2022-09-29
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Austria

82022AT0929(51)_ENG_SUMJURE
JURE summary
JURE summary
A public limited company (hereinafter ‘the plaintiff’) filed an action against a private limited company (hereinafter ‘the defendant’).
The defendant contested the jurisdiction of the Court of First Instance, claiming the non-existence of an effective choice-of-court agreement. The Bezirksgericht Kitzbühel (hereinafter ‘the Court of First Instance’) dismissed the objection.
The defendant's appeal lodged with the Oberlandesgericht Innsbruck (hereinafter ‘the Court of Appeal’) was dismissed. The Court of Appeal found that a purchase order made from the sphere of the defendant and signed solely by the managing director of the plaintiff, stipulating Kitzbühel as the place of jurisdiction and performance, was to be assessed as an effective choice-of-court agreement.
The extraordinary revision filed by the defendant with the Oberstes Gerichtshof (hereinafter ‘the Supreme Court’) was dismissed for failing to meet the preconditions set out in Article 528(1) of the ZPO (1).
The requirement of Article 23(1)(a) of the new Lugano Convention that a choice-of-court agreement must be made in writing also applied to this case where the document containing the choice-of-court agreement was missing the signature of the defendant, the identity of whom, however, was clear.
In relation to this case, the principle of the autonomy of the choice-of-court agreement was to be applied. Such an agreement represents an agreement which is independent of the main contract. The choice-of-court agreement would be effective even if the main contract, the purchase agreement in this case, were invalid. Just as the same was it irrelevant whether the general terms and conditions of the defendant had been agreed effectively or not.
(1) Zivilprozessordnung (Code of Civil Procedure).
(2) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.