4.

I stated at the outset the terms of the questions of transitional law which has been presented by the national court. Its solution involves the interpretation of the first paragraph of Article 54 of the Convention. That provision lays down that the Convention applies to legal proceedings brought subsequently to its coming into force. Consequently the only condition necessary for the operation of the new system of rules, even in regard to disputes relating to relationships entered into prior to the date of the Convention's coming into force, is that the action be brought after that date. The transitional provisions, following techniques already tested in systems of municipal law, attribute significance to the time of commencement of proceedings, thus limiting the application of the new system of rules to proceedings commenced after such time. If a rule of that nature had not been made, it might have been maintained that, on the principle tempus regit actum, the Convention ought to apply also to current proceedings. In order to avoid the inconvenience, especially the practical inconvenience, which a solution of that nature would have brought, the Convention has expediently provided for the transition from the old to the new system and restricted within rational limits the temporal aspect of the application of the new rules. The criterion adopted in Article 54 does not give rise to any difficulty if the question is one of the regulation of conflicts in time of provisions relating to events or documents which are strictly forensic, that is to say events or documents which are connected with the litigation proceedings themselves. If, however, the rule of the Convention which has to be applied pre-supposes the existence of a document or a relationship which may have come into being before the court proceedings it may be questioned whether the same criterion continues to be valid. A theory might indeed be propounded whereby Article 54 refers to provisions of the Convention of the first type whereas for those linked to the working of the substantive relationship between individuals their applicability would be limited to cases in which the relationship had been formed after the entry into force of the Convention. I have already had occasion to note, in the opinion delivered on 17 November 1976 in Case 25/76 Segura v Bonakdarian [1976] ECR 1851 at p. 1867, that the Convention lays down certain features of substantive law ‘as conditions precedent for the formalities required by the Convention to be fulfilled’, which it is the function of the Convention to regulate. In other instances (as in the cases envisaged in Article 17), the expression of the parties' desire to achieve a certain forensic result is set in a contractual context, that is, in a context of substantive law. But what is important, for the purposes of the Convention, is the effect to be given to a specific instrument (in this case the clause of exclusion inserted in the contract of employment): to be more precise the forensic effect — which cannot take place except in the context of litigation and therefore after the litigation has been commenced — independently of the contractual context. In these circumstances I consider that Article 54 falls to be interpreted in a manner which makes provisions of the Convention of the nature of Article 17 applicable even if the legal relationship in question pre-dated the entry into force of the Convention. Accordingly, the rule which recognizes the lawfulness of clauses excluding jurisdiction applies also to those contracts which were entered into prior to that date. In this case the view adopted by the French appellate court was influenced by the fact that at the time when the clause excluding jurisdiction was entered into it was subject only to national law (the Convention not then being in force) and under that law, as has been seen, the clause was regarded as void. This kind of situation might raise a doubt as to whether Article 54 had, so to speak, the power of reviving an agreement which ab initio had been denied legal validity. But this doubt may be removed by three classes of consideration. First, a finding of nullity made by the law of one State does not prevent a different finding being arrived at by another judicial yardstick (that being, in this case, the Convention). The actual existence of the agreement being beyond dispute, its legal effect may be determined in a different manner if looked at from the standpoint of a different set of rules. Secondly, in so far as it has to be accepted that what is involved is the subsequent revival of a clause which was radically defective at the date of the agreement, the point may be made that there is no reason why a legislative provision may not regulate a particular matter with retroactive effect; and particularly so in the field of the validation of instruments which were initially radically defective, given that the possibility of such validation is conferred by many systems of law even on private individuals, subject to certain conditions. It is to be noted that in the field of private law retroactive acts encounter a limit only in certain particular situations: and that is, as a rule, in the case of accrued rights and decrees judicially pronounced; apart from cases such as that the legislature is free to lay down rules even for the past. But the consideration which appears to me to be compelling is a further one. It is not necessary to attribute any retroactive effect to Article 17 as read with Article 54 for the simple reason that the question of the validity or nullity of the clause excluding jurisdiction was relevant only for the purposes of the litigation and, as I have already noted, its effect in terms of litigation only came in for debate after the Convention had come into force. In short, in my opinion, the annulling effect of French law in the present case has always remained inoperative inasmuch as only the substantive and not the procedural aspects of the contract of employment had been acted upon prior to 1 February 1973. When the prerequisite for the creation of any procedural effects — namely, the commencement of judicial proceedings — was met the Convention had then entered into force.