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CISG CASE PRESENTATION

Germany 24 May 2006 Appellate Court Köln (Shock-cushioning seat case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/060524g1.html]

Primary source(s) of information for case presentation: Case text

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Case identification

DATE OF DECISION: 20060524 (24 May 2006)

JURISDICTION: Germany

TRIBUNAL: OLG Köln [OLG = Oberlandesgericht = Provincial Appellate Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 16 U 25/06

CASE NAME: German case citations do not identify parties to proceedings

CASE HISTORY: 1st instance Amtsgericht Köln (143 H 5/05) 2 March 2006

SELLER'S COUNTRY: Netherlands (defendant)

BUYER'S COUNTRY: Germany (plaintiff)

GOODS INVOLVED: Shock-cushioning seat for bus


Case headnote

Reproduced from Internationales Handelsrecht [4/2006] 147

"The fact that a choice of forum clause is contained in general terms and conditions which are not in the language used in negotiations does not hinder the validity of that clause.

"In case of conflicting general terms and conditions the non-conflicting terms and conditions are agreed upon; for the other the ‘last shot’ doctrine applies."

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Case abstract

GERMANY: Oberlandesgericht Köln 24 May 2006

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/80], CLOUT abstract no. 824

Reproduced with permission of UNCITRAL

Abstract prepared by Ulrich Magnus, National Correspondent, and Jan Lüsing

The German applicant purchased a bus from the respondent which was headquartered in the Netherlands. The applicant's order of November 2004 included the general terms and conditions printed in German on the reverse of the form. The respondent sent a confirmation of that order shortly afterwards, referring to its own general terms and conditions written in Dutch. The general terms and conditions of both parties contained a choice of forum clause for disputes arising from the contract, which stipulated that the forum was at the place of the seller's headquarters. In March 2006, the applicant filed a motion for independent proceedings at the German court of Cologne to obtain an expert's opinion on the question whether the delivered bus could be equipped with a different seat, which the applicant alleged the parties had agreed upon in the contract. The buyer considered that the court of Cologne was the proper forum, since the seller's branch through which the transaction had been concluded was in Cologne. The seller objected this fact and argued that its headquarters was in the Netherlands and that the one in Cologne was just an independent commercial agency.

The court dismissed the applicant's motion, and the appellate court affirmed the lower court's ruling, arguing that the German court had no international jurisdiction.

The appellate court stated that the requirement of mutual written form for agreements on the choice of forum under article 23 (1) of the EU Regulation No. 44/2001 on Jurisdiction and Recognition and Enforcement of Judgments in Civil and Commercial Matters ("Brussels I Regulation") could be met also by using general terms and conditions. The court found that the CISG was applicable since Germany and the Netherlands were contracting states and the parties had not excluded the application of the Convention. Then, the court pointed out that in case of conflicting general terms and conditions at least the non-conflicting parts of the general terms and conditions were considered to be agreed upon, while for the rest the "last-shot doctrine" applied, meaning that the general terms and conditions of the party sending its terms last prevailed. Therefore, the court considered valid the choice of forum agreement, since both standard terms were similar on this point. For the very same reason, in this particular case even the application of the "last-shot doctrine" would have led to a similar result.

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Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a)

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 19 [Also cited: Article 6 ]

Classification of issues using UNCITRAL classification code numbers:

19A [Acceptance of offer with modification].

Descriptors: Battle of the forms

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1132&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (German): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/1232.pdf>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1132&step=FullText> Internationales Handelsrecht (4/2006) 147-149

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation)

Queen Mary Case Translation Programme

Appellate Court Cologne (Oberlandesgericht Köln)

24 May 2006 [16 W 25/06]

Translation [*] by Thomas Arntz [**]

Edited by Todd Fox [***]

The complaint of the Plaintiff [Buyer] of Germany concerning the decision of the Court of First Instance of Cologne (Amtsgericht Köln) of 2 March 2006 is dismissed. [Buyer] is ordered to bear the costs.

GROUNDS FOR THE DECISION

1. On 14 March 2006 [Buyer] filed a motion at the Court of First Instance Cologne in independent evidentiary proceedings against [Seller], of The Netherlands, specified as "subsidiary L in L-S, represented by Manager X, respectively Q, as later corrected". [Buyer] seeks through the motion to obtain an expert opinion on the question of whether a shock-cushioning seat can be built on a low-floor bus bought from [Seller]. [Buyer] asserts that the parties agreed on such a shock-cushioning seat. [Buyer] considers the Court of First Instance Cologne to have proper venue because [Seller]'s subsidiary, through which the transaction was made, is located in Cologne. [Seller] denies this. [Seller] asserts that its corporate headquarters are in The Netherlands, that it does not have a subsidiary in Germany, and that Mr. Q operates an independent commercial agency.

The Court of First Instance dismissed the motion on the grounds that -- irrespective of the question whether courts in Germany have international jurisdiction -- the Court of First Instance Cologne lacks venue. The possibility that Mr. Q is an independent commercial agent and that his agency is accordingly not a subsidiary of [Seller] cannot be ruled out. [Buyer] immediately appealed this decision. During the appellate proceedings both parties addressed the question of the independent subsidiary of [Seller] as well as the question of the standard terms and conditions, which included a choice of forum agreement. There are different standard terms at hand: first, those attached to [Buyer]'s order of 21 November 2004; second, those [Seller] attached to its acknowledgment of 28 November 2004.

2. The admissible appeal is unfounded. The subsidiary motion is also dismissed. The Court of First Instance Cologne rightly dismissed the motion because the court lacks international jurisdiction and proper venue.

The jurisdiction of the invoked court is to be determined in accordance with the EU Regulation No. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters of 22 December 2000 (Brussels-I-Regulation).

According to Art. 1(1) Brussels-I-Regulation, the regulation is applicable to all civil and commercial matters, thus also to independent evidentiary proceedings under §§ 458 et seq. ZPO [*]. The wording of Art. 2(1) and Art. 3(1) Brussels-I-Regulation, pursuant to which a person is "sued", does not compel a different view. This expression is not meant to limit the applicability of the regulation to lawsuits in the sense of § 253 ZPO, but merely clarifies that it is only applicable to adversarial proceedings such as the one at hand (cf. Zöller/Geimer, ZPO, 25. ed., annex 1 Art. 2 Brussels-I-Regulation, para. 12). Pursuant to Art. 3(1) in connection with Art. 60(1) Brussels-I-Regulation, a legal person with its seat in a Member State can be sued in the courts of another Member State only by virtue of Arts. 5 et seq. Brussels-I-Regulation. In such a case, venue is also determined exclusively by application of Arts. 5 et seq. Brussels-I-Regulation; §§ 12 et seq. ZPO are not applicable (Zöller/Geimer, annex 1 Art. 2 Brussels-I-Regulation, para. 6).

Moreover, Art. 31 Brussels-I-Regulation, which allows the application of national provisions on jurisdiction for matters relating to provisional measures, does not provide an exception from the exclusive applicability of the Brussels-I-Regulation concerning international jurisdiction and venue here since the independent evidentiary proceedings are not a "provisional measure" in the sense of Art. 31 Brussels-I-Regulation (EuGH [*], judgment of 28.04.2005, JZ [*] 2005, 1166).

The question of whether or not the special jurisdiction of the subsidiary is applicable, which would provide the Court of First Instance Cologne with jurisdiction pursuant to Art. 5 no. 5 Brussels-I-Regulation, may remain open because there is a valid choice of forum agreement. According to this agreement, the court at the seat of [Seller] has jurisdiction to decide claims between the parties arising out of the contract. Thus, the question of whether the agency of Mr. Q is an independent subsidiary of [Seller] need not be answered.

The parties concluded a valid choice of forum agreement in accordance with Art. 23 Brussels-I-Regulation in favor of the court at the [Seller]'s seat. Pursuant to Art. 23 Brussels-I-Regulation, the chosen court shall have exclusive jurisdiction. Thus, there is no room for the presumption that the Court of First Instance Cologne has jurisdiction pursuant to Art. 5 no. 5 Brussels-I-Regulation.

Through the incorporation of [Seller]'s standard terms, the parties concluded a valid choice of forum agreement. This agreement, which can be found under para. 19.3 of [Seller]'s general terms and conditions, is in writing as required by Art. 23(1) sentence 3(a) Brussels-I-Regulation. The requirement of written form can also be fulfilled by reference to the standard terms containing the choice of forum clause (Zöller/Geimer, annex 1 Art. 23 Brussels-I-Regulation, para. 23). The attachment of standard terms to the acceptance of an offer generally does not yet lead to a choice of forum agreement based on a choice of forum clause contained in those terms, because the requirement of a (mutual) writing is not fulfilled (BGH [*], judgment of 9 March 1994, NJW [*] 1994, p. 2699 concerning Art. 17 EuGVÜ [*]; MünchKomm/Gottwald, ZPO, 2nd ed., Art. 17 EuGVÜ, para. 24). The situation is different however, if the other party confirms the standard terms in writing and thus agrees to the choice of forum clause (Zöller/Geimer, op. cit., Art 23 Brussels-I-Regulation, para. 28; Geimer/Schütze, European Civil Procedural Law (Europäisches Zivilverfahrensrecht), 2nd ed., Art. 23 para. 107; MünchKomm/Gottwald, op. cit., Art. 17 EuGVÜ, para. 32).

The fact that the choice of forum clause was agreed to as a part of the standard terms -- which were written in Dutch and therefore not in the language used for negotiations -- does not affect its validity. According to the prevailing opinion, Art. 23 Brussels-I-Regulation does not require that the standard terms be drafted in the same language as the main contract. National provisions concerning the use of certain languages for contract formation do not apply within the scope of application of Art. 23 Brussels-I-Regulation (cf. Geimer/Schütze, op. cit., Art. 23, para. 93, 125; Zöller/Geimer, op. cit., Art. 23 para. 34). The yet undecided question of which principles govern the "language risk" (cf. BGH, IPRax [*] 1991, 326; IPRax 1992,373; the EuGH [*] has left the question open) does not need to be answered because [Buyer] did not object to the application of the standard terms written in Dutch. Furthermore, [Buyer] used a form for its order, on the reverse of which the standard terms of the German Association for Motor Trades and Repairs (Zentralverband des Deutschen Kraftfahrzeuggewerbes) were printed in the German language. These terms contain a choice of forum clause identical in content to the one at issue here. [Buyer] explicitly referred to these standard terms during the appellate proceedings. Thus, the mere fact that the choice of forum clause in the [Seller]'s standard terms, identical in content to the one contained in the standard terms of the German Association for Motor Trades and Repairs expressly accepted by [Seller], was written in a foreign language does not raise doubts as to its validity. Concerning the question of jurisdiction, it can remain undecided whether the parties agreed to the standard terms of [Seller] or the ones of the German Association for Motor Trades and Repairs, because in this respect these partially differing standard terms contain an identical choice of forum provision. Pursuant to the provisions of the CISG -- which is applicable to the contract because Germany and The Netherlands are Contracting States (cf. Schlechtriem, CISG , 3rd ed., annex) and the parties did not exclude its application, Art. 6 CISG -- the interpretation of contracts with conflicting terms leads to the application of at least those provisions which do not differ. Beyond this, the so-called "last-shot doctrine" applies, according to which the governing terms are those which were exchanged last (cf. Schlechtriem, op. cit., Art. 19, para. 19 et seq.). Here, both alternatives lead to the result that the parties validly concluded a choice of forum agreement.

The forum agreed to by the parties for all present and future claims arising out of the business relationship is at the seat of [Seller]. The [Seller] has its seat in W/Netherlands even if the agency run in L by Q were considered a subsidiary in the sense of Art. 5 no. 5 Brussels-I-Regulation. While the seat of a party is at the place where the head office is located, a subsidiary as a branch is characterized precisely by the fact that it is located elsewhere (Geimer/Schütze, European Civil Procedural Law (Europäisches Zivilverfahrensrecht), 2nd ed., Art. 5 Brussels-I-Regulation, para. 307 et seq.). The Court of First Instance Cologne has no international jurisdiction and no venue because the choice of forum agreement confers exclusive jurisdiction on the courts of The Netherlands.

The subsidiary motion of [Buyer] to refer the proceedings to the Court of First Instance Borna is dismissed. The Court of First Instance Borna has no jurisdiction based on Art. 5 no. 1 (b) Brussels-I-Regulation (special jurisdiction of the place of performance) because the jurisdiction of the courts of The Netherlands is exclusive according to Art. 23 Brussels-I-Regulation. The decision on costs is based on § 97(1) ZPO [*]. A distribution of costs pursuant to § 97(2) ZPO is not necessary because at this stage of the proceedings it remains open whether the immediate appeal would have been successful regardless of the assertions concerning the choice of forum clause. The question concerning the subsidiary in L could have required further clarification in light of the jurisprudence of the European Court of Justice concerning the term "subsidiary" in the sense of Art. 5 no. 5 Brussels-I-Regulation (EuGH, judgment of 22 November 1978, RIW [*] 1979, 56; judgment of 18 March 1981, IPrax 1982, 64; comp. also OLG [*] Saarbrücken, judgment of 27 August 2002, OLGR Saarbrücken 2003, 55).


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Germany is referred to as [Buyer] and Defendant of The Netherlands is referred to as [Seller].

Translator's note on abbreviations: BGH = Bundesgerichtshof [Federal Court of Justice, the highest German Court in civil and criminal matters]; EuGH = Europäischer Gerichtshof [European Court of Justice]; EuGVÜ = Europäisches Gerichtsstands- und Vollstreckungsübereinkommen, 1968 [Convention of 27 September 1968 on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, succeeded by the Council Regulation on Jurisdiction and the Recognition of Judgments in Civil and Commercial Matters (44/2001/EC)]; IPRax = Praxis des Internationalen Privat- und Verfahrensrechts [German law journal]; JZ = Juristen Zeitung [German law journal]; NJW = Neue Juristische Wochenschrift [German law journal]; OLG = Oberlandesgericht [German Appellate Court]; RIW = Recht der Internationalen Wirtschaft [German law journal]; ZPO = Zivilprozessordnung [German Code of Civil Procedure].

** Thomas Arntz is a law student at the University of Cologne. During 2003-2004 he spent a year in Clermont-Ferrand, France as an Erasmus student. In 2004-2005, he participated in the Twelfth Willem C. Vis Moot.

*** Todd Fox received his J.D, from Rutgers University and his LL.M. summa cum laude from the University of Freiburg, Germany. A member of the Bar of the State of Pennsylvania, he is an Associate of the Institute of International Commercial Law of the Pace University School of Law.

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