Opinion of Mr Advocate-General Capotorti

Mr President,

Members of the Court,

1. In the present case the Court is called upon to resolve a question of interpretation of Article 17 of the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters. I take the liberty of reminding the Court that the question is concerned with the article governing jurisdiction by consent: it covers the situation when the parties, one or more of whom is domiciled in a Contracting State, have … agreed that a court or the courts of a Contracting State are to have jurisdiction to settle any disputes which have arisen or which may arise in connexion with a particular legal relationship, and confers exclusive jurisdiction on the court or courts designated provided that the agreement between the parties takes the form of an agreement in writing or … an oral agreement confirmed in writing. The meaning of this formal requirement is in fact the subject of the questions referred to the Court by the Bundesgerichtshof of the Federal Republic of Germany.

2. The general question of the choice between an independent interpretation of the provisions of the Convention and reference to the substantive law applicable in accordance with the private international law of the court before which the matter is brought — to which attention was drawn by the Court of Justice in its judgment in Industrie Tessili v Dunlop — also arises in the present case. Form is, of course, only one aspect of a private agreement providing for the assignment of jurisdiction, and the connexion between the various aspects of the agreement becomes even more evident when the assignment of jurisdiction is the subject of only one of a group of clauses of the contract relating to questions of substance. This explains why, in the context of national law, it has been held by some authorities that the form of the agreement or of the clause assigning jurisdiction must be determined in accordance with the rule of private international law governing the form of contracts (which, in the majority of the States, is based on the principle locus regit actum). Does this view have any bearing on the question of interpretation which the Court now has to decide?

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.

4. In the light of the general considerations set out above, I can now consider the two questions submitted by the Bundesgerichtshof.

5. The second question is concerned with a more complicated situation, in which the parties expressly refer to a prior offer in which reference was made to the general conditions annexed thereto and containing the clause relating to the court having jurisdiction.

6. My recommendation is therefore that the Court should reply in the following terms to the two questions which has been submitted by the Bundesgerichtshof.

1 Translated from the Italian.