‘In writing’ requirement can be met by terms and conditions with prorogation clause
On February 27 2014 the Supreme Court ruled in a case(1) in which the plaintiff argued for
international jurisdiction based on the rules for disputes regarding individual employment contracts,
as outlined in Chapter 5 of the Lugano Convention 2007. The Supreme Court found that there was an
individual employment contract under Article 18 of the Lugano Convention.
The plaintiff claimed that he had worked for the defendant almost exclusively in Austria during the
relevant period (international jurisdiction is based on the location at which an employee last regularly
worked). In doing so, he deviated from the facts found by the trail court (to which the Supreme Court is
bound), according to which he had worked primarily in Bulgaria and Germany during the relevant
period.
The Supreme Court can deviate from the facts found by a trial court only where the trial court solely
used documents or admissible indirect evidence. In this case, the facts challenged in the appeal
were based on the direct testimony of the plaintiff and a witness; thus, the court could not deviate from
them.
Further, the plaintiff could not base his petition on a prorogation clause interpreted under Article 21 of
the Lugano Convention because the ‘in writing’ requirement in Article 23(1)(a) was not met. While this
requirement can also be met by referencing terms and conditions which include a prorogation
clause, in cases such as this, standing European Court of Justice and Supreme Court case law
requires a contract’s text to refer explicitly to the terms and conditions.(2) It was undisputed that the
parties had not concluded a written contract; thus, the ‘in writing’ requirement had not been met.
For further information on this topic please contact Klaus Oblin at Oblin Melichar by telephone
(+43 1 505 37 05), fax (+43 1 505 37 05 10) or email ([email protected]). The Oblin Melichar
website can be accessed at www.oblin.at.
Endnotes
(1) OGH, February 27 2014, 8 Ob A 38/13s.
(2) ECJ 1976, 1831 marginal note 12 – Estatis Salotti/Rüwa; RIS-Justiz RS0115733; in particular, 1 Ob
98/11k; Brenn, Europäischer Zivilprozess marginal note 56; Tiefenthaler in
Czernich/Tiefenthaler/Kodek, Europäisches Gerichtsstands- und Vollstreckungsrecht³ Art 23
EuGVVO marginal note 29.
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