Professor: Mateusz Prorok Presenters: Bun Rithy Sorn Kann Royal University of Law and Economics Berghoefer v. ASA Case Good morning professor, and good morning everyone here! I am Kann, this is Rithy We are glad to be here. And today we come up with a case called Bergheofer v. ASA to present to you Professor: Mateusz Prorok Presenters: Bun Rithy Sorn Kann

Contents Background Arguments of Both Parties Decision of the Court Importance of the Case for the International Law Conclusion This is our contents. We are going to cover… ,so the first presenter would be Rithy

Background Plaintiff Defendant Germany France There was a contract between German company, Berghoefer and French company, ASA The Berghoefer acted as the agency of ASA in 20 years The argument had a choice of court in French court. Subsequently, the both parties agreed orally the chosen court would be in Germany.

II. Arguments of Both Parties Bergoefer ASA Oral agreement regards jurisdiction Sent letter to other one party, ASA But no reply (seen no reply) When the problem happened Bergoefer went to German court Denied of the received letter from the plaintiff, Bergoefer ASA claimed that French court has a jurisdiction on this case. Later on,  a dispute between both companies arose.

III. Decision of the Court Reginal court: Monchengladbach February 19, 1981 The court declared that it had jurisdiction over this case. They considered that it was proven that both parties orally agreed to gain jurisdiction in Monchengladbach court Higher reginal court: Oberlandesgericht March 12, 1982 The higher reginal court disagreed with the plaintiff, and said that it against the first paragraph of Article 17 of the convention. “In the view of the Oberlandesgericht, an oral agreement conferring jurisdiction was only valid if it had been confirmed in writing by the party against whom it was to be raised in the event of a dispute. In this case however the written confirmation emanated from the plaintiff, the party for whose benefit the agreement was made, and not from the defendant, against whom it was being raised.” Let move to my part which is the decision of the court. After the dispute between two parties arose. The plaintiff brought the case to the reginal court in Germany….. Reginal court: they declared that it had jurisdiction over this case because it proven that both parties agreed orally to gain jurisdiction in Germany. Appeal court/ higher reginal court: said that an oral agreement conferring jurisdiction was only valid if it has been confirmed in writing by the party against whom it was to be raised in the event of a dispute. So, the appeal court was not sure about the decision, which party has jurisdiction over this case. After that the appeal court sued this case to the Supreme Court in the Germany.

Supreme court: Bundesgerichtshof Firstly that, according to the letter and the spirit of the first paragraph of Article 17 of the Convention, a jurisdiction agreement could also be validly confirmed by the party for whose benefit it had been concluded. Secondly, it pleaded the bad faith of the defendant Asked the Court of Justice of the European Union Supreme court: claimed that according to the letter that Bergeofer (German company) sent to ASA (French company) but ASA seen no reply the letter did related (against) to the Brussel convention of the first paragraph of article 17. After the consideration, the Supreme Court asked Court of Justice of the European Union to have jurisdiction over this case. And the European court decided to give the jurisdiction to the German company. European court decided to give jurisdiction to the German court.

IV. Importance of the Case for the International Law The first paragraph of Article 17 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters must be interpreted as meaning that the formal requirements therein laid down are satisfied if it is established that jurisdiction was conferred by express oral agreement, that written confirmation of that agreement by one of the parties was received by the other and that the latter raised no objection What is the article 17 is about? I’ll show you on the next slide which is the importance of the case for international law. It is about which party has jurisdiction that was conferred by express the oral agreement that written confirmation of that agreement by one of the party was received by the other and that letter raised no objection.

Such an agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing; or (b) in a form which accords with practices which the parties have established between themselves; or (c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned. The agreement conferring jurisdiction such as… Let jump into the conclusion…

Conclusion The case happened between Bergoefer (German company) and ASA (French company) The contract that was written and agreed that French court will have a jurisdiction, later they agreed orally that German will have choice of court in case the problem happened. The final say the court has jurisdiction on German court.

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