Choice of court in bond prospectus. The CJEU in Profit Investment Sim.

The CJEU has in my view taken the sensible approach in C-366/13 Profit Investment Sim, on (among others) whether choice of court included in a bond prospectus, binds not just the original transactional parties but also the buyers of such bonds on the secondary markets or via intermediaries. (An issue which many of us pondered in Kolassa but which was not sub judice there).

Parties at issue were Commerzbank (formerly Dresdner), the bond issuer; Redi, financial intermediary licensed by the UK FSA and subscriber of all relevant bonds on the primary market; and Profit, an Italian company, who bought part of the bonds of Redi, on the secondary market. Dresdner’s prospectus contains choice of court in favour of the English courts.

First, on the issue of the jurisdiction clause. The referring court asks, in essence, whether Article 23(1)(a) and (c) of Regulation 44/2001 (both now part of Article 25) must be interpreted as meaning that a jurisdiction clause, such as that at issue in the main proceedings, satisfies the formal requirements laid down in Article 23(1)(a) [‘in writing or evidenced in writing’] where (i) it is contained in a prospectus produced by the bond issuer concerning the issue of bonds, (ii) it is enforceable against third parties who acquire those bonds through a financial intermediary and (iii), in the event that the first two parts of the second question are answered in the negative, it corresponds to a usage in the field of international trade or commerce for the purpose of Article 23(1)(c).

Choice of court in the prospectus and the impact on the primary market.

The Court first of all holds that the ‘formal requirement’ of (now Article 25 a (a) ”in writing or evidenced in writing’ for the issue of choice of court between Dresdner and Redi is only met (along the lines of Colzani Case 24/76) if the contract signed by the parties upon the issue of the bonds on the primary market expressly mentions the acceptance of the clause by Redi, or contains an express reference to the prospectus. The latter in particular is quite likely.

Choice of court in the prospectus and enforceability against third parties acquiring through a financial intermediary.

Next, the Court (at 30) holds that the same two alternatives apply for the relationship between Redi and Profit. Here the court refers to Refcomp and  distinguishes it, basically by pointing to the specific examples of bills of lading and choice of court in shareholders registries, cases in which the CJEU had previously accepted transferability of choice of court to third parties, in specific circumstances. (Please refer to both the Refcomp judgment and to current judgment (at 33 ff) for detail).

The Court consequently held (at 37) that choice of court contained in a prospectus produced by the bond issuer concerning the issue of bonds may be relied on against a third party who acquired those bonds from a financial intermediary if it is established, which it is for the referring court to verify, that (i) that clause is valid in the relationship between the issuer and the financial intermediary, (ii) the third party, by acquiring those bonds on the secondary market, succeeded to the financial intermediary’s rights and obligations attached to those bonds under the applicable national law, and (iii) the third party had the opportunity to acquaint himself with the prospectus containing that clause. (Emphasis added).

The emphasis I added is quite important: the CJEU does not hold that such succession is somehow part of an EU Ius Commune.

Finally, if the answer to the first two questions is negative, is there usage in international trade or commercial custom between the parties? 

This, the Court holds, has to be determined by the national court. The CJEU (at 48) recalls its earlier case-law in particular C-106/95 MSG:  actual or presumed awareness of a usage on the part of the parties may be made out, in particular, by showing either that the parties had previously had commercial or trade relations between themselves or with other parties operating in the sector in question, or that, in that sector, a particular course of conduct is sufficiently well known because it is generally and regularly followed when a particular type of contract is concluded, so that it may be regarded as being an established practice.

The Court does though give a few more practical things which the national court needs to look out for: at 49. In order to determine, in the main proceedings, whether the insertion into the prospectus of a jurisdiction clause constitutes a usage in the sector in which the parties operate, of which those parties were aware or ought to have been aware, the referring court must take into account, inter alia, the fact that that prospectus was approved in advance by the Irish Stock Exchange and made available to the public on the latter’s website, which does not seem to have been contested by Profit in the proceedings on the merits. In addition, the referring court must take account of the fact that it is undisputed that Profit is a company active in the field of financial investments as well as of any commercial relationships it may have had in the past with the other parties to the main proceedings. The national court must also verify whether the issue of bonds on the market is, in that sector, generally and regularly accompanied by a prospectus containing a jurisdiction clause and whether that practice is sufficiently well known to be regarded as ‘established’.


Lest one forgets, the Court’s judgment is also relevant for a more general query on the nature of (now) Article 7(1): must the action seeking the annulment of a contract and the restitution of the amounts paid on the basis of a document the nullity of which is established, be regarded as ‘matters relating to a contract’ (the existence of which plaintiff seeks to dispute)? Yes, it does: if only (at 54) to ensure that Article 7(1) cannot simply be torpedoed by one party claiming that there is no contract.

(The judgment also reviews the conditions of application of (now) Article 8(1), with respect to ‘irreconcilability’ of judgments).

This judgment is quite relevant in yet again the CJEU having to defer to national law on the issue of transferability (see the emphasis I added, above). The Court very clearly does not wish to overplay its hand in trying to force a European Ius Commune in private law, via the use of private international law.


(Handbook of) European Private International Law Chapter 2, Heading; Heading;;.; 2.2.12



Subrogation of choice of court clauses: The ECJ (succinctly) in Refcomp

The ECJ has issued its ruling in Refcomp, Case C-543/10. I reported on Jaaskinen AG’s Opinion here. The Court effectively confirmed the Opinion, albeit within the boundaries of its customary judicial economy.

Like the AG, the Court first of all limits precedent value to a ‘chain of contracts under Community law’: i.e. a succession of contracts transferring ownership which have been concluded between economic operators established in different Member States of the European Union. It subsequently re-affirms the consensual nature of jurisdiction clauses as insisted on by Article 23 of the Jurisdiction Regulation, and the Brussels Convention before it.  ‘It follows that the jurisdiction clause incorporated in a contract may, in principle, produce effects only in the relations between the parties who have given their agreement to the conclusion of that contract. In order for a third party to rely on the clause it is, in principle, necessary that the third party has given his consent to that effect.’

In a chain of contracts transferring ownership, the relationship of succession between the initial buyer and the sub-buyer is not regarded as the transfer of a single contract or the transfer of all the rights and obligations for which it provides – in contrast with bills of lading for which the Court had previously (Case C‑387/98 Coreck) held that a jurisdiction clause incorporated in a bill of lading may be relied on against a third party to that contract if that clause has been adjudged valid between the carrier and the shipper and provided that, by virtue of the relevant national law, the third party, on acquiring the bill of lading, succeeded to the shipper’s rights and obligations.

Basically, under French law and French law (almost) alone, the action by Doumer against Refcomp would, exceptionally, be considered contractual. In the other Member States, it would not. To refer, the court holds, the assessment as to whether the sub-buyer may rely on a jurisdiction clause incorporated in the initial contract between the manufacturer and the first buyer to national law, would give rise to different outcomes among the Member States liable to compromise the aim of unifying the rules of jurisdiction pursued by the Regulation. The concept of ‘jurisdiction clause’ referred to in that provision therefore must be interpreted as an independent concept, guided by the need to give full effect to the principle of freedom of choice on which Article 23(1) of the Regulation is based.

The ECJ therefore holds that

Article 23 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a jurisdiction clause agreed in the contract concluded between the manufacturer of goods and the buyer thereof cannot be relied on against a sub-buyer who, in the course of a succession of contracts transferring ownership concluded between parties established in different Member States, purchased the goods and wishes to bring an action for damages against the manufacturer, unless it is established that that third party has actually consented to that clause under the conditions laid down in that article.


Subrogation of Choice of court clauses: Opinion AG in Refcomp to intensify debate on harmonisation of European contract law

There are one or two issues in the application of the jurisdiction Regulation where ECJ intervention is eagerly awaited. One of those is the subrogation of choice of court clauses in contracts. Is the party subrogated into the contractual rights and obligations of another, bound by the choice of court clause in the original contract?

The answer to this question so far depends largely on national law. In the absence of common European contract law, there is no general rule.

Relevant facts. In the case at issue, SNC Doumer (‘Doumer’) had renovation work carried out on a building complex located in Courbevoie (France), and had taken out insurance with Axa Corporate Solutions Assurance SA (‘Axa Corporate’), whose registered office is at Paris, France. As part of that work, air-conditioning units each equipped with a number of compressors were installed, which had been:

–        manufactured by Refcomp SpA (‘Refcomp’), whose registered office is in Italy,

–        purchased from that company and assembled by Climaveneta SpA (‘Climaveneta’), whose registered office is also located in Italy,

–        supplied to Doumer by Liebert, to whose rights Emerson Network Power (‘Emerson’), itself insured with Axa France IARD (‘Axa France’), is subrogated, the respective registered offices of which are located in France.

Irregularities occurred in the air-conditioning system following installation. An expert’s report ordered by a court revealed that those failures were caused by a defect in the manufacturing of the compressors. Subrogated to the rights of Doumer, to which it paid compensation as its insured, Axa Corporate summoned the manufacturer Refcomp, the assembler Climaveneta and the supplier Emerson to appear before the Tribunal de grande instance de Paris (Regional Court, Paris), for the purposes of claiming from them in solidum compensation in respect of that defect.

The two Italian defendant companies contested the jurisdiction of the Tribunal de grande instance de Paris, relying, in respect of Climaveneta, on an arbitration clause which appears in the distribution contract between it and Emerson, and, in respect of Refcomp, on a clause conferring jurisdiction on an Italian court which was included in the general terms of the sales contract concluded between itself and Climaveneta.

National court’s decision. The Court of appeal, Paris held that the objection raised by Climaveneta had to be upheld: it argued it did not have jurisdiction to hear and determine the claim brought against that company on the ground that under French law, in a chain of contracts transferring ownership, an arbitration clause was automatically transferred as an appurtenance to the right of action which is itself an appurtenance to the substantive rights transferred, the homogeneous or heterogeneous nature of the chain being of little importance.

By contrast, the Cour d’appel de Paris upheld the lower court’s rejection of the objection of lack of jurisdiction raised by Refcomp. It justified its decision stating that the rules governing special jurisdiction in matters relating to a contract laid down in Article 5(1) of Regulation No 44/2001 did not apply to a dispute between the sub‑buyer of goods and the manufacturer who was not the seller, since such a dispute concerns matters relating to tort or delict, which are governed by the provisions of Article 5(3) of that Regulation, and stated that Article 23 thereof was no longer applicable since the action had no contractual basis.

The case went to the Cour de Cassation which in turn referred to the ECJ. Jaaskinen AG opined on 18 October. Precedent at the ECJ includes Handte, however only in minor aspect. The AG first of all referred to the fact that the Court of appeal’s findings are a result of French law on contracts:

‘the legal theory according to which, although the principle of privity of contract ordinarily applies, in that contracts are binding only on the parties who have signed them, an exception is nevertheless made to that principle where there is a transfer of ownership, ownership being transferred to all the subsequent purchasers of the goods concerned together with all elements appurtenant to it. It follows that, in French law, the sub-buyer of goods may bring an action for damages against the seller, or against any of the intermediaries who sold the goods or even directly against the manufacturer of those goods’ (at 22).

He then proactively distinguishes his Opinion (at 26-28), in particular that the case at issue only concerns situations where the clause is enforced against the subrogated party, not by it. He would also seem to suggest that his Opinion may only hold where the chain is entirely ‘Union’ based: i.e. not where there is a contractual element with parties outside of the EU (however that might just be me reading too much into the ‘Community chain’ reference).

Generally, however, the AG firmly pulls the harmonisation card: choice of court agreements are exempt from the Rome I Regulation; there is therefore no harmonised conflicts rule [see here for the proposals in the current review of the Regulation]; leaving it up to national conflict rules creates uncertainty and, as a method, has been abandoned by Regulation 44/2001 (under the old rules on special jurisdiction for contracts, the Court had to find in Tessili that it could not force a European approach to characteristic performance; this has now changed for a number of usual suspects among contract categories).

The issue therefore needs to be given a European interpretation which, the AG suggests on the basis of the exceptional character of Article 23 and the protection of unsuspecting third parties, needs to be that

‘a clause conferring jurisdiction agreed between the manufacturer of goods and one of the purchasers of those goods which falls within the scope of the provisions of that article does not produce binding effects against the sub-buyer of those goods who is not party to the contract containing that clause, or against the insurer who is subrogated to the rights of the sub-buyer, unless it is established that that sub-buyer agreed to the clause in accordance with the detailed rules laid down in that article.’

While the AG suggests that this is a solution along the lines of the current review of the Regulation, I disagree: that review will lead to a harmonised approach to which conflict of laws rules decide the issue, but not whether privity of contract extends to choice of court agreements. Neither and incidentally, as far as I am aware, does the European Commission proposal for a Common European Sales Law, address the issue of subrogation.

One or two things for the ECJ to ponder.


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