Oberster Gerichtshof; 2018-03-28; 6 Ob 19/18i
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2018:0060OB00019.18I.0328.000
Date: 2018-03-28
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Austria

82018AT0328(51)_ENG_SUMJURE
JURE summary
JURE summary
In its action, a public limited company domiciled in Switzerland (hereinafter ‘the plaintiff’) sought the enforcement of invalidity (or annulment) of an agreement concluded between the plaintiff and the defendant on the basis of the sole signing authority entered in the commercial register as representative of the plaintiff, being the son of the defendant (hereinafter ‘the defendant’).
The defendant applied for the action to be dismissed on the grounds of lack international jurisdiction. According to the agreement, the jurisdiction lies with the court Zurich I (including Swiss law).
The Landesgericht Feldkirch (hereinafter ‘the Court of First Instance’) dismissed the action on the basis of lack of international jurisdiction. According to Article 17(1) of the new Lugano Convention (1), the court designated in the agreement is to be regarded as having jurisdiction. This also applies in the event that the claim seeks the declaration of invalidity of the agreement in which the jurisdiction clause is enshrined.
The Oberlandesgericht Innsbruck (hereinafter ‘the Court of Appeal’) amended the decision by rejecting the plea of lack of domestic jurisdiction and instructed the Court of First Instance to continue the proceedings without giving a reason for dismissal.
The defendant lodged an appeal which the Oberste Gerichtshof der Republik Österreich (hereinafter ‘the Supreme Court’) considered as admissible and justified.
The agreement included a jurisdiction clause, which shall be treated separately from the contested agreement. The validity of the agreement on jurisdiction cannot be based solely on the grounds that the agreement itself is not valid. The Court of Justice of the European Union ruled before that a jurisdiction clause should, in principle, be considered independent of the contract in which it is contained. The court specified in the clause shall also be competent if the action also seeks the invalidity of the contract.
However, this only applies if the jurisdiction agreement has been effectively concluded. A defect that invalidates the contract itself also affects the jurisdiction agreement, such as, for example, the conclusion of the contract by an ineligible person or a person without legal representation.
Although the plaintiff alleged in the lawsuit that the former board of directors (son of the defendants) had misused his authority to conclude the agreement, this is not the case. Although he was dismissed from the position by the plaintiff at the end of the year, at the time of the conclusion of the agreement he was still fully capable of acting on behalf of the plaintiff and his power of attorney was not limited in that respect.
The jurisdiction agreement is also not disadvantageous to the plaintiff (abuse for procedural reasons) as the plaintiff is located within an hour's drive from Zurich. The drive to Feldkirch takes half an hour.
The Supreme Court found the defendant's appeal admissible and restored the decision of the Court of First Instance.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.