Judgment of the Court; 16 March 1999; Trasporti Castelletti Spedizioni Internazionali SpA v Hugo Trumpy SpA; in Case C-159/97

The third case mentioned in the second sentence of the first paragraph of Article 17 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, is to be interpreted as follows:

1. The contracting parties' consent to the jurisdiction clause is presumed to exist where their conduct is consistent with a usage which governs the area of international trade or commerce in which they operate and of which they are, or ought to have been, aware.

2. The existence of a usage, which must be determined in relation to the branch of trade or commerce in which the parties to the contract operate, is established where a particular course of conduct is generally and regularly followed by operators in that branch when concluding contracts of a particular type. It is not necessary for such a course of conduct to be established in specific countries or, in particular, in all the Contracting States. A specific form of publicity cannot be required in all cases. The fact that a course of conduct amounting to a usage is challenged before the courts is not sufficient to cause the conduct no longer to constitute a usage.

3. The specific requirements covered by the expression `form which accords' must be assessed solely in the light of the commercial usages of the branch of international trade or commerce concerned, without taking into account any particular requirements which national provisions might lay down.

4. Awareness of the usage must be assessed with respect to the original parties to the agreement conferring jurisdiction, their nationality being irrelevant in this regard. Awareness of the usage will be established when, regardless of any specific form of publicity, in the branch of trade or commerce in which the parties operate a particular course of conduct is generally and regularly followed in the conclusion of a particular type of contract, so that it may be regarded as an established usage.

5. The choice of court in a jurisdiction clause may be assessed only in the light of considerations connected with the requirements laid down in Article 17 of the Convention of 27 September 1968. Considerations about the links between the court designated and the relationship at issue, about the validity of the clause, or about the substantive rules of liability applicable before the chosen court are unconnected with those requirements.

(1) - The terminology of the English text was changed by the Convention of 26 May 1989 from `practices' to `usages'. The majority of the other language texts use the same terminology (usage, uso, Handelsbrauch ...). In the translation of the present judgment, the term `usages' has been adopted [although it did not appear in the text of the convention under consideration].