Elefanten Schuh GmbH v Pierre Jacqmain.
Date: 1981-06-24
10 THE CASE ENVISAGED IN ARTICLE 17 IS NOT THEREFORE ONE OF THE EXCEPTIONS WHICH ARTICLE 18 ALLOWS TO THE RULE WHICH IT LAYS DOWN . MOREOVER NEITHER THE GENERAL SCHEME NOR THE OBJECTIVES OF THE CONVENTION PROVIDE GROUNDS FOR THE VIEW THAT THE PARTIES TO AN AGREEMENT CONFERRING JURISDICTION WITHIN THE MEANING OF ARTICLE 17 ARE PREVENTED FROM VOLUNTARILY SUBMITTING THEIR DISPUTE TO A COURT OTHER THAN THAT STIPULATED IN THE AGREEMENT .
14 ALTHOUGH DIFFERENCES BETWEEN THE DIFFERENT LANGUAGE VERSIONS OF ARTICLE 18 OF THE CONVENTION APPEAR WHEN IT IS SOUGHT TO DETERMINE WHETHER , IN ORDER TO EXCLUDE THE JURISDICTION OF THE COURT SEISED , A DEFENDANT MUST CONFINE HIMSELF TO CONTESTING THAT JURISDICTION , OR WHETHER HE MAY ON THE CONTRARY STILL ACHIEVE THE SAME PURPOSE BY CONTESTING THE JURISDICTION OF THE COURT AS WELL AS THE SUBSTANCE OF THE CLAIM , THE SECOND INTERPRETATION IS MORE IN KEEPING WITH THE OBJECTIVES AND SPIRIT OF THE CONVENTION . IN FACT UNDER THE LAW OF CIVIL PROCEDURE OF CERTAIN CONTRACTING STATES A DEFENDANT WHO RAISES THE ISSUE OF JURISDICTION AND NO OTHER MIGHT BE BARRED FROM MAKING HIS SUBMISSIONS AS TO THE SUBSTANCE IF THE COURT REJECTS HIS PLEA THAT IT HAS NO JURISDICTION . AN INTERPRETATION OF ARTICLE 18 WHICH ENABLED SUCH A RESULT TO BE ARRIVED AT WOULD BE CONTRARY TO THE RIGHT OF THE DEFENDANT TO DEFEND HIMSELF IN THE ORIGINAL PROCEEDINGS , WHICH IS ONE OF THE AIMS OF THE CONVENTION .
15 HOWEVER , THE CHALLENGE TO JURISDICTION MAY HAVE THE RESULT ATTRIBUTED TO IT BY ARTICLE 18 ONLY IF THE PLAINTIFF AND THE COURT SEISED OF THE MATTER ARE ABLE TO ASCERTAIN FROM THE TIME OF THE DEFENDANT ' S FIRST DEFENCE THAT IT IS INTENDED TO CONTEST THE JURISDICTION OF THE COURT .
16 THE HOF VAN CASSATIE ASKS IN THIS REGARD WHETHER JURISDICTION MUST BE CONTESTED IN LIMINE LITIS . FOR THE PURPOSES OF INTERPRETING THE CONVENTION THAT CONCEPT IS DIFFICULT TO APPLY IN VIEW OF THE APPRECIABLE DIFFERENCES EXISTING BETWEEN THE LEGISLATION OF THE CONTRACTING STATES WITH REGARD TO BRINGING ACTIONS BEFORE COURTS OF LAW , THE APPEARANCE OF DEFENDANTS AND THE WAY IN WHICH THE PARTIES TO AN ACTION MUST FORMULATE THEIR SUBMISSIONS . HOWEVER , IT FOLLOWS FROM THE AIM OF ARTICLE 18 THAT IF THE CHALLENGE TO JURISDICTION IS NOT PRELIMINARY TO ANY DEFENCE AS TO THE SUBSTANCE IT MAY NOT IN ANY EVENT OCCUR AFTER THE MAKING OF THE SUBMISSIONS WHICH UNDER NATIONAL PROCEDURAL LAW ARE CONSIDERED TO BE THE FIRST DEFENCE ADDRESSED TO THE COURT SEISED .
19 ARTICLE 22 OF THE CONVENTION IS INTENDED TO ESTABLISH HOW RELATED ACTIONS WHICH HAVE BEEN BROUGHT BEFORE COURTS OF DIFFERENT MEMBER STATES ARE TO BE DEALT WITH . IT DOES NOT CONFER JURISDICTION ; IN PARTICULAR , IT DOES NOT ACCORD JURISDICTION TO A COURT OF A CONTRACTING STATE TO TRY AN ACTION WHICH IS RELATED TO ANOTHER ACTION OF WHICH THAT COURT IS SEISED PURSUANT TO THE RULES OF THE CONVENTION .
25 ARTICLE 17 IS THUS INTENDED TO LAY DOWN ITSELF THE FORMAL REQUIREMENTS WHICH AGREEMENTS CONFERRING JURISDICTION MUST MEET ; THE PURPOSE IS TO ENSURE LEGAL CERTAINTY AND THAT THE PARTIES HAVE GIVEN THEIR CONSENT .
26 CONSEQUENTLY CONTRACTING STATES ARE NOT FREE TO LAY DOWN FORMAL REQUIREMENTS OTHER THAN THOSE CONTAINED IN THE CONVENTION . THAT IS CONFIRMED BY THE FACT THAT THE SECOND PARAGRAPH OF ARTICLE 1 OF THE PROTOCOL ANNEXED TO THE CONVENTION EXPRESSLY PRESCRIBES SPECIAL REQUIREMENTS OF FORM WITH REGARD TO PERSONS DOMICILED IN LUXEMBOURG .