2.

Under Article 17 an oral agreement for jurisdiction by consent is, with a view to expediting trade, a valid means of conferring exclusive jurisdiction on the selected court but, out of consideration for the certainty of legal relationships and the protection of the weaker party, such an agreement has effect only if it is followed by confirmation in writing (the article cited requires in terms an ‘oral agreement confirmed in writing’). Such confirmation must obviously be such as to fulfil the purpose for which it was required. Furthermore, especially when the clause assigning jurisdiction is one of a set of general conditions pre-determined by one of the parties, particular care must be taken to ensure that confirmation is effected in such a way as to leave no doubt concerning the agreement of the other party to the assignment of jurisdiction. At this juncture there arises the issue of confirmation forthcoming from one only of the parties. The Jenard report, which was presented with the Brussels Convention, stated that the wording of Article 17 is ‘very similar’ to that of the Germano-Belgian Convention, which is in turn based on the Hague Convention of 15 April 1958 on selected jurisdiction in connexion with international sales of goods. As regards the effectiveness of oral agreements assigning jurisdiction the Germano-Belgian Convention requires ‘confirmation in writing which has not been disputed’ (Article 3 (2)) and the Hague Convention confirmation ‘by declaration in writing by one of the parties or by a broker without having been contested’ (Article 2), both of them, of course, with specific reference to the designation of the court which is to have jurisdiction. The Jenard report adds that ‘since the clause conferring jurisdiction presupposes a genuine agreement between the parties, the court may not necessarily regard a writing made by the party invoking it as proof of an oral agreement’. In the light of these considerations, it is, in my opinion, clearly impossible to justify so strict a view with regard to the requirements for confirmation as that suggested by Segoura, the effect of which would be wholly and absolutely to rule out any possibility of valid confirmation being supplied by the party which has pre-determined the clause assigning jurisdiction. The wording of Article 17 does not appear to require this, nor would it be necessary for the protection of the party against whom the assignment of jurisdiction is being invoked because the latter still retains the right, after receiving the letter of confirmation, to challenge anything stated therein which relates to the oral agreement on assignment. The essential purpose of confirmation in writing of an oral agreement assigning jurisdiction is to express the oral clause in words which are objectively certain, and to define its precise terms as they affect the parties and the selected court which, under the clause, is assigned jurisdiction in disputes arising in connexion with a specific legal relationship. The same purpose can be achieved even when the written document containing the confirmation is supplied by the party which pre-determined the assignment clause provided that, having regard to the previous and subsequent conduct of the two parties to the agreement, this is done in such a way as to amount to objective verification of the agreement reached on the clause reduced to writing in the ‘confirmation’. Apart, therefore, from the case of a bilateral confirmation which obviously presents no difficulty, it is possible to distinguish two separate examples of written confirmation given by one party only in the context of general conditions, including assignment of jurisdiction, pre-determined in its own interests by one of the contracting parties. In the first example, confirmation is given by the party which did not pre-determine the general conditions and to whom the clause is disadvantageous. Even if such confirmation refers to the general conditions as a whole it can be regarded as sufficient to give effect to the assignment clause. The second example occurs when confirmation is forthcoming from the party which has pre-determined the general conditions. It is clear that, in this case, there must be a stricter approach: that is to say, confirmation in writing must record not only the oral agreement concerning the general conditions but, in particular, the agreement regarding the clause assigning jurisdiction. What must be avoided is the possibility that the clause has gone unnoticed or has simply not been mentioned in a comprehensive reference to the general conditions of contract. It must, of course, be borne in mind that the abovementioned rules of the Conventions all provide for written confirmation of an oral agreement assigning jurisdiction; it is therefore the conclusion of that agreement which must be proved. And, as is usual, the weaker party must have played its part in the conclusion of such agreement not only by being aware of the assignment clause but also by being willing to accept it.