The ship owner and the charterer both had their registered offices in Malta and their actual seats in Greece. A charter agreement was entered into between the two companies, pursuant to which the owner chartered a ship, flying under the Maltese flag, to the charterer, which subsequently sub-chartered the ship to the Iraqi state to transport a cargo from Germany to Iraq. The ship was returned five months later than the date agreed in the charter contract, due to the delay caused by the Iraqi state. The owner initiated arbitration proceedings in London and in turn, the charterer brought an action for damages against the Iraqi state. A privately-executed agreement was signed by the owner and the charterer which provided, inter alia, that the pending arbitration proceedings would be stayed for six months, and that, if a settlement with the Iraqi state were reached, the owner would receive at least 20% of the amount paid to the charterer. The agreement included a clause conferring exclusive jurisdiction on the courts of England and Wales. Subsequently, the owner learnt that a settlement had been agreed by the charterer with the Iraqi State and that the charterer had received the amount of the settlement. The owner then continued the arbitration proceedings and an arbitration award was delivered, ordering compensation to be paid to it. The owner also submitted that two representatives of the charterer, both residing in Greece, had deprived the latter of its assets, thereby preventing the owner from receiving its compensation. The owner, accordingly, brought an action for damages before a Greek court against the charterer and its representatives, with the aim of rendering them jointly and severally liable for having committed tortious acts. By reason of the jurisdiction clause, the court dismissed the action so far as concerned the charterer, but the court found that it had jurisdiction in relation to its representatives and upheld the application as to the substance. The representatives subsequently appealed to the Greek referring court, which decided to stay the proceedings and to refer to the Court of Justice of the European Union for a preliminary ruling the question, in essence, whether article 23 of Council Regulation (EC) No 44/2001 (“the Brussels I Regulation”) meant that a jurisdiction clause in a contract between two companies could be relied upon by the representatives of one of them to dispute the jurisdiction of a court over an action for damages which aimed to render them jointly and severally liable for supposedly tortious acts carried out in the performance of their duties. Article 23(1), under the Chapter entitled prorogation of jurisdiction, provided that if the parties, one or more of whom was domiciled in a member state, had agreed that a court of a member state was to have jurisdiction, that court had exclusive jurisdiction, unless the parties had agreed otherwise.
On the reference—
Held, that the jurisdiction clause in issue was not being put forward by one of the parties to the contract in which it appeared, but by third parties to that contract. Not only had the representatives of the charterer not expressed their intent to enter into an agreement conferring jurisdiction, but the owner had also no more consented to be bound to those persons by such an agreement. Further, neither the parties nor the referring court had set out details or evidence to justify the view that the representatives of the charterer and the owner had entered into an agreement in one of the forms envisaged in article 23(1)(b) and (c) of the Brussels I Regulation containing a jurisdiction clause, such as the one in issue. With regard to article 6 of the Brussels I Regulation, which dealt with jurisdiction in instances where there was more than one defendant, the requirements laid down by article 23 had to be strictly interpreted since they excluded both jurisdiction as determined by the general principle of the courts of the member state in which the defendant was domiciled laid down in article 2 thereof, and the special jurisdiction provided for in articles 5 to 7 of that Regulation. In particular, by entering into an agreement conferring jurisdiction in accordance with article 23(1) of the Brussels I Regulation, the parties could derogate not only from the general jurisdiction under article 2 thereof but also from the special jurisdiction laid down in articles 5 and 6 of the Regulation. Thus, the court seised of a matter could, in principle, be bound by a jurisdiction clause derogating from the rules of jurisdiction laid down in articles 5 and 6 which was concluded by the parties under article 23(1). Accordingly, article 23(1) of the Brussels I Regulation meant that a jurisdiction clause in a contract between two companies could not be relied upon by the representatives of one of them to dispute the jurisdiction of a court over an action for damages which aimed to render them jointly and severally liable for supposedly tortious acts carried out in the performance of their duties (judgment, paras 36, 37, 38, 39, 40, 43, operative part).
Cartel Damage Claims (CDC) Hydrogen Peroxide SA v Akzo Nobel NV (Evonik Degussa GmbH intervening) (Case C-352/13) EU:C:2015:335; [2015] QB 906; [2015] 3 WLR 909, ECJ and El Majdoub v CarsOnTheWeb.Deutschland GmbH (Case C-322/14) EU:C:2015:334; [2015] 1 WLR 3986, ECJ applied.
A Magrippi and S Charitaki, agents, for the Greek Government.
A Rubio González, and subsequently by A Gavela Llopis, agents, for the Spanish Government.
M Konstantinidis and M Heller, agents, for the European Commission.