9.

The third paragraph of Article 17 remains to be interpreted. It is arguable, and has been argued, that this provision contemplates the case in which a unilateral jurisdiction clause provides that only one of the parties is to be subject to it whilst the other party may waive it and thus bring into operation the general rules on jurisdiction laid down in the Convention. If that interpretation were correct, the third paragraph of Article 17 would have nothing to do with this case and would not be applicable to it. However, it is difficult to see what purpose is served by a provision which restores to the party which has ‘the advantage’ the benefit of rules of general application which, by definition, it has not waived by contract. Therefore, in my view, the third paragraph of Article 17 applies to a clause which, although inserted exclusively in the interests of only one of the contracting parties, is none the less, as in this case, bilateral in nature or to a unilateral clause stipulating that proceedings brought by that contracting party must be brought in a court which is expressly designated. The third paragraph of Article 17 confers on the party which is ‘at an advantage’ the right to waive its advantage in order to bring into operation the general rules on jurisdiction. So construed, the third paragraph of Article 17 constitutes a derogation from the principle of the equality of the contracting parties. Moreover, besides the jurisdiction conferred by agreement, it introduces one or more alternative jurisdictions, which detracts from legal certainty, an aim of both the Brussels Convention and the clause conferring jurisdiction. For those two reasons, it must be regarded as an exception to the contractual rule for which the first paragraph of Article 17 makes provision and, as such, must be interpreted strictly. The parties may expressly state in the contract that the clause conferring jurisdiction was agreed upon in the interests of only one of them. This would greatly facilitate the court's task with regard to the application of the third paragraph of Article 17. However, that was not done in this case. The court must therefore look at the contract to see whether there is an exclusive interest of that kind. Since the third paragraph of Article 17 must be strictly construed, the existence of an exclusive interest cannot be presumed. Nor can it be automatically inferred from objective evidence, since it is a question of interpreting the intention of the parties. Consequently, the fact that the clause confers jurisdiction on the court of the domicile of one of the contracting parties is a factor which may — and must — be taken into account by the national court when determining the intention of the parties. However, it is not the decisive factor. Other factors, such as the manner in which the law applicable to the contract is currently applied by the court which is designated, may show that the clause is in the interests of both parties. I therefore suggest that the Court should answer the question referred to it for a preliminary ruling as follows: (1) Agreements conferring jurisdiction which are validly concluded in accordance with the first paragraph of Article 17 of the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters are just as binding on the contracting parties as the general rules for conferring jurisdiction laid down in Articles 2 to 15 of the Convention in the absence of such agreements. (2) The third paragraph of Article 17 of the Convention must be interpreted as meaning that, where such an agreement has been concluded for the exclusive benefit of one of the contracting parties, that party retains the right to waive that advantage and to institute proceedings in any other court which has jurisdiction by virtue of the aforesaid general rules. (3) It is for the national court to determine, having regard to the circumstances of the case before it and to the terms of the contract, whether or not a clause conferring jurisdiction has been agreed upon for the exclusive benefit of one of the parties. The fact that the clause confers jurisdiction on the court of the domicile of one of the parties is a factor whose significance must be assessed by that court.