2.

The doubt which is expressed by the first question concerns the following point: the first paragraph of Article 17 of the Convention relates to a clause whereby ‘the parties have … agreed that a court or the courts of a Contracting State are to have jurisdiction to settle any disputes which have arisen … in connexion with a particular legal relationship’, whereas a clause such as that in the present case confers jurisdiction on the courts of two Contracting States to settle disputes arising from the contract and the disputes are assigned to the courts of one or other State depending on which of the parties to the contract initiates proceedings. In my view the validity or a clause or this nature can be recognized without misgivings. Indeed, it is probable that no doubt would have arisen if the clause had been worded differently; that is, if it had prescribed that each parry could be sued only before the courts of his domicile (or perhaps of the State of which he is a national: in the present case the two links coincide). In those circumstances an identical intention would have been expressed in such a way as to emphasize the concern of the parties to establish a single criterion as being decisive: the domicile (or the nationality) of the defendant. Nevertheless, quite apart from the foregoing, it can be recognized that the parties to a contract may stipulate that the courts of two States shall have jurisdiction to settle disputes arising from that contract, provided that each jurisdiction is restricted to a specified class of dispute. In short, there is nothing to preclude the parties, instead of treating all disputes which could arise from their contract as a whole, from dividing them into two or more groups in accordance with criteria which they are free to establish and prescribing the courts of a different State for each group. This is not a common step but there are no grounds for considering it unlawful. The Commission is accordingly correct in observing that the parties to the contract could have concluded two separate agreements (one for proceedings which Meeth might institute and the other for proceedings initiated by Glacetal), thus specifying in each of such agreements a single jurisdiction (the French courts in the former case, the German in the latter). The simpler form, whereby two separate, national agreements are combined in a single clause, clearly cannot affect the problem of the substantive validity of such expression of the joint intention of the parties. It is scarcely necessary to state that the specific choice made by the parties in the present case is undoubtedly compatible with Article 17 of the Convention. We have seen that the Bundesgerichtshof has referred exclusively to the first paragraph of Article 17, which does not prescribe limits to the right to such choice in that it does not require that there be any material link between the contract and the State to which the court or tribunal specified by the clause pertains. But even if regard be had to the second paragraph of Article 17, the conditions concerning validity which it prescribes — a requirement that Articles 12, 15 and 16 must in all circumstances be observed — it will simply be found that the clause in question does not infringe any of those conditions. Accordingly it is merely superfluous to point out that the choice expressed in the clause is fully in accordance with the general system of the Convention: the courts specified are those of the defendant's country of domicile, as is provided in the first paragraph of Article 2. The only effect of the clause is thus that the jurisdiction based on domicile is rendered exclusive. It remains finally to point out that the Commission has further doubted whether the generic description in the clause conferring jurisdiction of the courts of a State is sufficient in the absence of further specification of the level or type of court. The Commission has itself affirmed that it is sufficient, and indeed it appears to me that nothing could conform more completely with Article 17 than the literal repetition of the wording adopted by that article (‘the courts of a Contracting State are to have jurisdiction …’). It seems to me clear that a clause so worded refers by implication to the system of rules of territorial jurisdiction relating to value and subject-matter in force in the State in question in order to determine precisely the court before which proceedings must be instituted.