Jurisdiction Clauses in Transnational Company Relationships
| Author | Stephan Rammeloo |
| Published date | 01 December 1994 |
| Date | 01 December 1994 |
| DOI | 10.1177/1023263X9400100405 |
| Subject Matter | Article |
Stephan
Ranuneloo
Jurisdiction
Clauses
in
Transnational
Company
Relation-
ships
Article 17 Convention on jurisdiction and the enforcement of judgments in civil and
commercial matters (Brussels Convention) - jurisdiction clause in the articles of associ-
[1992] ECR 1755: pragmatism for the benefit or to the detriment of legal certainty?
§1.
Introduction
Inanswer to the preliminary questions submitted by the Oberlandesgericht Koblenz, the
European Court of Justice ruled that a jurisdiction clause in a company's articles of
association ('statutes') designating the court of a Contracting State to take cognizance
of disputes between the company and its shareholders, is an 'agreement' within the
meaning
of
article 17 of the Brussels Convention.
Although the concept of ajurisdiction clause in articles of association is not completely
foreign 1to domestic international jurisdiction rules, this is a first for the regime of the
Brussels Convention.
It
is expected that the jurisdiction clause discussed in this article
will be 'copied' in the articles of association of other share companies, especially in
view
of
a growing intensification of inter-Community cooperation. Enough reason,
therefore, to examine the matter in a little more detail. As a result of the autonomous
*
1.
426
Lecturer in Private Law, University of Limburg (NL). I am grateful to Louise Rayar for her transla-
tion.
Tracing judgments seems like looking for a needle in a haystack. See, e.g., the relevant (unilaterally
formulated) jurisdiction rule in the French law of conflicts, as defined by J. Hamel/G . Lagarde/A.
Jauffret, Droit commercial (vol. 1) (edition litec., 1980), 383 ff.: 'Ies actionnaires francais d'une
societe etrangere sont lies
par
une clause des statuts attribuant competence alajuridiction etrangere',
Cf. also R. Geimer, annotation to the judgement of the OLG Koblenz, Entscheidungen zum
Wirtschaftsrecht (1989), 886, commenting on the decision by OLG Koblenz, in which he advocates
an extrapolation from the 'example' of article 222 of the German Zivilprozessordnung (Gerichtsstand
der Mitgliedschaft) to be employed in the international jurisdiction law.
MJ 1(1994)
IStephan Rammeloo
meaning of 'agreement' in article 17 of the Brussels Convention, a 'zweispiiltiges
Echo' 2(double echo) of comments relating to both company law and conflict laws is
to be expected. One may ask what is theuse of another commenton this decision, given
that several annotations have already been published. 3
However, these earlier decisions were of a more-or-less one dimensional character,
requiring a synthesis from a comparative pont of view. A combined analysis of opinions
so far will show that several questions still remain unanswered.
After the essentials of the case are described (§ 2), the implications for the system of
article 17 are examined (§ 3). This is followed (§ 4) by a brief reflection on notions of
substantive company law with regard to the nature of the legal relationship between the
company and its shareholders and the question of whether individual shareholders should
enjoy the same protection as policy-holders, consumers or employees do under the
regime of article 17. The fifth and final part contains the author's conclusions.
§2. Case C-214/98 PowellDuffryn pte. v.
Wolfgang
Petereit[1992] ECR
1755
In a series of share issues that took place in 1979, 1981 and 1982, Powell Duffryn plc,
incorporated under English law (hereafter referred to as Powell Duffryn), acquired
registered shares in IBH-Holding AG, a company governed by German law. After the
first issue, the 1980 IHB's General Shareholders' Meeting, in which Powell Duffryn
participated, adopted a Resolution, by acclamation, to insert the following clause in the
Articles of Association: 'By subscribing for or acquiring shares or interim certificates
the shareholder submits, with regard to all disputes between himself and the company
or its organs, to the jurisdiction of the courts ordinarily competent to entertain suits
concerning the company' .
As a result of a compulsory winding up IBH subsequently went into liquidation in 1983.
Wolfgang Petereit (from here on: Petereit), in his capacity of trustee of IHB-Holding
AG, claimed the remaining sums owed on the shares purchased by Powell Duffryn, as
well as restitution of dividends unduly distributed.
The Landgericht of Mainz declares itself competent on the grounds of the jurisdiction
clause in the Articles of Association. Powell Duffryn contended that, pursuant to article
2 of the Brussels Convention, the only competent court was that of the place of resi-
dence
of
the defendant (here the court of the country where Powell Duffryn is estab-
lished, i.e. the United Kingdom) and lodged an appeal against the ruling with the
2. E. Jayme/C.Kohler. annotation to ECJ
Powell
Duffryn
v.
Petereit,
Praxis
des Internationalen
Privat-
und Yetfahrensrechts (1992),351. Likewise M.V. Polak, annotation,
CML
Rev. (1993),419: ' ... an
important case on the cross-roads of company law and procedural law'.
3. See, inter alia, the contributions below by Geimer and Jayme/Kohler (Germany), Gaudemet-Tallon
(France), Hensen, Polak and Vias (the Netherlands) and Vandeginete (Belgium).
MJ 1 (1994) 427
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