3.

The wording of Article 17 of the Brussels Convention closely resembles that of Article 3 (2) of the Germano-Belgian Convention of 30 June 1958, which came into force on 27 January 1961, an article which was in turn based on the rule in Article 2 of the Hague Convention of 15 April 1958 on the jurisdiction of the selected forum in international sales of goods. As emphasized in the Jenard report on the Brussels Convention, insistence on writing was intended to ensure legal certainty. This means that what was required was clear proof that the parties were ad idem on the clause specifying the court having jurisdiction so as to avoid those uncertainties and conflicting views on the existence and terms of the contract in question which might arise if the principle were accepted that there should be no requirement whatever as to form. Again according to the Jenard report, the provision in Article 17 ought to make it possible to enforce those requirements without creating such unneccessary formalities as to impede business practices. In fact, the authors of the Convention tried to ensure that, in the interests of trade, legal formalities should be rapid and flexible in operation, especially by enabling the contracting parties to make a valid, even though oral, agreement on the assignment of jurisdiction, provided that it is confirmed in writing. The procedure for confirmation is not specified in clear terms and may make interpretation somewhat difficult, especially when there is confirmation by only one of the parties but this goes beyond the ambit of the present case. I shall have occasion to return to this point in my opinion in Case 25/76. The central issue raised by the present case is a different one; it is that of clauses for jurisdiction by consent drawn up in advance, in writing, for its own benefit by one of the contracting parties, and in most cases pre-printed on blanks or forms used for contracts or offers of contracts. We know that, in some cases, to avoid the possibility of those clauses being accepted by the other party without his being fully aware of the extent of his commitment, national regulations prescribe what might be called more substantial requirements as to form: not only must there be writing, a requirement which is obviously fulfilled when the clause has been drawn up in advance, especially when it is printed, but also a specific acceptance in writing. The Convention does not contain a provision of this kind. Moreover, the reservation by Luxembourg laying down that an agreement conferring jurisdiction shall be valid with respect to a person domiciled in that State only if that person has expressly and specifically so agreed (second paragraph of Article I of the Protocol annexed to the Convention) shows that specific acceptance in writing is not necessarily required by Article 17. This, again, is probably the result of anxiety not to obstruct business practice with requirements of form which might appear unnecessarily restrictive. But the Jenard report, quoting the report accompanying the Germano-Belgian Convention of 1958, contains a very significant reference to this subject, in a sentence stating that the object is to ‘render ineffective clauses in contracts which are liable to escape notice’. And it adds: 'Account will, therefore, be taken of such clauses only when they are the subject of an agreement, which assumes the parties to be ad idem. Accordingly, clauses which appear on printed matter used for correspondence or invoices and which have not been accepted by the party against whom they are to be applied will be of no effect. There can be no doubt that, since they refer to ‘clauses which are liable to escape notice’ the passages quoted refer, by implication, to clauses pre-determined by one of the parties. In my opinion, the principle embodied in the Jenard report can be described as follows: although the contracting party who did not participate in laying down the clauses in advance has the opportunity to acquaint himself with them (by reading, for example, what is printed at the back of a form), this does not suffice; there must be proof of a consensus, that the parties are ad idem, which is obviously something more than merely knowing or being in a position to know the clauses which the other party has drafted for his own benefit. I have no doubt that this principle is a fair one: it not only accords with the general principle, on which Article 17 is based, that the weaker party should be protected but it also covers the extreme case where failure to comply with a requirement of form may indicate total absence of agreement. In practice, this possibility is especially likely to exist where the pre-determined clauses are not contained in the text of the contract; I have already quoted the example which, incidentally, applies in the present case, of clauses printed on the back of the sheet on which the contract is written. In a case of that kind, the contract might contain a reference to the clauses but use of this technique of reference creates further difficulty. I make no attempt to give here an exhaustive list of the ways in which the reference may be formulated, but shall confine myself to saying that it must be sufficiently clear to make it reasonable to assume that the party against whom the assignment of jurisdiction is being invoked has agreed to it. Finally, in cases where the clause assigning jurisdiction has been formulated in advance and, in particular, when it is included in the general conditions of sale, the requirement of written form laid down by Article 17, which acts as a guarantee that there is a consensus, involves strict proof of the purchaser's agreement to the assignment of jurisdiction. This strictness is justified by the seriousness at the international level of removing one of the parties to the contract from the jurisdiction natural to him as indicated in Articles 2 and 5 of the Brussels Convention.