1. Prorogation & Argumentation Radka Chlebcová Simona Trávníčková

2. Structure of this lesson The most important about prorogation Case-law: Explain it to your client How to write a memo Break Argumentation

3. The most important about prorogation JUDr. Radka Chlebcová

4. Prorogation Art. 23 Brussels I. Prorogation v. derogation Art. 23: Choice of jurisdiction through agreement between the parties Art. 24: Choice of jurisdiction through submission, voluntary appearance

5. Purpose of Art. 23 Without this agreement is always uncertain which party it will be who sues Legal certainty, considerably and forseeability Freedom to choose the competent court and the limits of this freedom

6. The scope of application of Art. 23 Corresponds with that of the Regulation – Material: Civil and commercial matter – Territorial is wider (not required defendant’s domicile in a Member state) – Temporal: Also for jurisdiction agreement concluded before “in force dates”. – Personal: does not require specific qualifications, neither nationality nor any other

7. Relationship to national law No objective connection between the chosen court and the dispute As far as applicable art. 23 takes preference over national law (mandatory and discretionary provisions). Purpose: The uniform and foreseeable application

8. Relationship to other provisions of Brussels I. The boundaries of the jurisdiction agreement: – Exclusive jurisdiction and the protective jurisdiction under Art. 13, 17, 21 of Brussels I. prevail! – Art. 23 does not overrule Art. 27 and 28. – The jurisdiction agreement can only oust the jurisdiction under Art. 2, 5, 6.

9. Effect of a valid jurisdiction agreement 1.Prorogation 2.Derogation Exclusive v. non-exclusive The principle of sovereignty does not enable to regulate how the courts outside the European Union have to deal with jurisdiction agreement

10. Choice of a Member state’s court/s Locally competent court is determined by the national law Art. 23 ignores the procedural role of the parties Despite its wording courts of several member states as well Jurisdiction agreements only for the benefit of one of the parties

11. Choice of place of performance An agreement on the place of performance may in its effect equal to the jurisdiction agreement (compare Art. 5 par. 1). Art. 23 does not extent to these agreements But: „Fiction for jurisdiction“, it is necessary to meet the requirements of Art. 23 – otherwise invalid.

12. Domicile of the parties At least one party is domiciled in a member state where Brussels I. is in force. Relevant time for domicile: – Domicile requirement has to be fulfilled at the time of the conclusion of the contract Prorogation from outside: Art. 23 applies and excludes the possible jurisdiction of other member state courts unless and until the prorogated forum has declined its jurisdiction.

13. Particular legal relationship “Dispute which have arisen or may arise in connection with the particular legal relationship”. A matter of construction to which disputes the jurisdiction agreement shall extend. No “Catch all clause”

14. Validity Material validity: The national law – In general: conclusion of a contract. A later change does not normally affects the validity of jurisdiction agreement. Formal validity: Regulated by Art. 23 – The jurisdiction agreement has to comply with the form requirements of Art. 23 at least at the time when the proceedings are commenced.

15. Agreement of the parties Central requirement for the validity of jurisdiction agreement Free and independent consent It is the first thing the entitled court has to examine This consensus has to be clearly and precisely demonstrated

16. Form Art. 23 covers the form requirements and excludes the national law. Five different forms: 1.In writing 2.Evidenced in writing 3.Practices among the parties 4.International trade usage 5.By electronic means The decisive point for the form requirement is the commencement of the proceedings.

17. 1. Meaning of “writing” The consent is expressed in written and authorized form Authorization –the signature Expressly stated or at least referring to the same jurisdiction clause and singed Exchange of letters, Emails, if allow durable record

18. 2. Evidence in writing 1.Oral agreement – Consensus (even if implicit) concerning the jurisdiction of the chosen court – Not satisfied: Subsequent notification of general conditions containing a Jurisdiction agreement, unless the practices between the parties or international trade usage 2.Confirmation in writing – There must exist a prior agreement! – Confirmation must comply with the prior agreement – Not a mere invoice

19. Practices between the parties Only continuing business relationship where the party never objected to the other party Implicit agreement on the jurisdiction of certain court Established with sufficient certainty Consensus with respect to the jurisdiction A practice alone does not substitute an agreement Practices v. Usage

20. Electronic communication Art. 23/2 Equivalent to writing if reproducable in durable form = the recipient should have the choice to store the message Email must be authorized – signed with the printed name – a qualified signature is not required (not for voice mails, video conferences, message on the screen, sms messages)

21. To sum it up… Is hard… Go againt through the presentation and read it carefully Read more about prorogation in commentary to Brussels I

22. Meet your client And answer its questions based on the case-law…

23. Děkuji za pozornost Tento studijní materiál byl vytvořen jako výstup z projektu č. CZ.1.07/2.2.00/15.0198 23 Tento projekt je spolufinancován Evropským sociálním fondem a státním rozpočtem České republiky.