8.

That statement of the essential facts which are set out in the documents before the Court (and in particular in the judgment of the Court of Cassation) does not, as I said earlier, dispel certain doubts or ambiguities concerning the facts of the case. Allow me, however, in the light of the considerations which I have set forth, to consider two possibilities and to draw symmetrical conclusions from them. The first possibility is that the original agreement is regarded by the court having jurisdiction as legally valid and applicable even though it has not been renewed in writing; that is the sense in which the reference to the fact that it continued to serve as the ‘legal basis’ for the contractual relations between the parties is to be understood. That possibility arises — as the Commission points out in its observations — where, for instance, the national law applicable to the agreement recognizes the validity of a mere oral revocation of the original clause providing for renewal of the original agreement in writing and the parties subsequently renew it either orally or tacitly. In that case, as the Commission concedes, the jurisdiction clause in the original agreement could be regarded simply as valid in every respect. That would be consistent with the requirements of flexibility in commercial practice also because oral renewal, which relates to the written agreement as a whole, would encompass all of its terms, which were undoubtedly inserted with the consent of the parties. Renewal of the agreement in writing would also have the same effect, without there being any need for express or specific confirmation of the jurisdiction clause. However, I consider that, whilst that is the first element to be taken into account in the answer to be given to the question submitted to the Court, it is not the sole element and, perhaps for that reason, is not decisive. Attention must be drawn to the following circumstances, which have been established or may have arisen in this case, and which should be taken into account over and above purely legal considerations in assessing the facts: the original agreement was no longer renewed in writing beyond a certain date; a considerable period (20 years) elapsed between the last date on which the agreement was renewed in writing and the termination of business relations between the parties; it is unclear to what extent the parties relied during that period on the original agreement, whether its terms were expressly relied upon as between the parties or in the proceedings or whether the agreement only continued to serve as a vague and general frame of reference; it may be true, as one of the parties alleged, that there was an agreement between them (Oral or written? How important was it?) to replace the requirement of written renewal with a system of tacit renewal; throughout the period in question the written terms of the agreement may have been amended in various ways without its being possible to ascertain the precise manner in which they were amended (orally or in writing, expressly or tacitly). Hence, even on the assumption that the original agreement continued to be legally valid, there are doubts as to the manner in which it continued to serve as the ‘legal basis’ for relations between the parties. In view of the circumstances, and notwithstanding the terms in which it was originally couched, the form of the jurisdiction clause does not constitute sufficient evidence of valid consent by the parties for the purposes of Article 17 of the Convention. It should be noted that, in the circumstances of this case, legal certainty requires two things: in the first place Article 17 of the Convention requires an ‘agreement in writing or ... oral agreement evidenced in writing’, which must be strictly interpreted by the Court, and secondly the agreement concluded between the appellant and the respondent in the main proceedings requires renewal to be confirmed in writing. In those circumstances, a rigorous assessment is essential in determining whether the formal requirements for the validity of the jurisdiction clause are satisfied. The second possibility is that the original agreement is not regarded as valid and applicable (and may not therefore be relied upon as it stands against either of the parties) under the applicable national law, but continues to serve as a legal framework for business relations between the parties, with the result that it may be said, for instance, to the extent to which the applicable national law permits them to do so, that the parties accept the agreement as a set of general conditions governing current business relations between them and any oral agreements which they may make. The result is that if the parties actually rely upon that agreement, whether in legal proceedings or otherwise, and comply with its terms, which they originally stipulated in writing freely and in full knowledge of the facts, they can no longer seriously maintain that they were unaware of those terms, and it would thus be contrary to the principle of good faith if one of the parties were able to invoke the requirements of Article 17 in order to escape the application of a jurisdiction clause (with regard to the principle of good faith in this area, I would refer to the case-law cited earlier). That second possibility assumes quite a different form if the national court finds, in the light of national legislation interpreted and applied by it in the specific circumstances of the case, that the agreement ceased to have any force after the expiry of the period for which it was last renewed in writing. The agreement before the Court would then be entirely distinct from the agreement that preceded it; it would be based on an oral or tacit agreement and might or might not be in conformity with national law but, in any event, would be incapable of satisfying the requirements of Article 17 of the Convention (even on the assumption that the terms of the two agreements are identical), not being evidenced in writing. If it were otherwise, there would be a risk (as in the case of the first possibility) of recognizing as valid for the purposes of Article 17 what is no more than an implied reference to a written agreement which was concluded earlier (and has in this case expired); this the Court has refused to do, albeit in another context (see the judgment in Salotti [1976] ECR 1831 at p. 1842).