Choice of Court Agreement Concluded Between Businessmen

(Decision of the Supreme Court from 6 September 2016, file no. 23 Cdo 240/2015)

In this case, two businessmen concluded a purchase contract. They agreed on a court competent to decide their potential disputes (so-called “prorogation agreement”). However, this agreement was only made by reference to the general terms and conditions (VOP). Moreover, these general terms and conditions were not attached to the contract itself but only mentioned on the purchaser’s publicly available website.

Subsequently, there was a dispute stemming from the purchase agreement in question, and the case was referred to the court. The court authorized in accordance with the prorogation agreement decided that it had no jurisdiction over the matter. The court reasoned this decision as follows: it is not possible to validly agree on a choice of court by reference to the general terms and conditions.  

The Supreme Court ruled that the prorogation agreement was concluded validly.

According to the Supreme Court the prorogation agreement may be concluded even within the general terms and conditions which are attached to the contract or which are known to the parties (as was the case in question). The more strict rules valid for consumers shall not apply for businessmen.