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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kaefer Aislamientos SA De CV v AMS Drilling Mexico SA De CV & Ors [2019] EWCA Civ 10 (17 January 2019) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2019/10.html Cite as: [2019] 3 All ER 979, [2019] 2 All ER (Comm) 315, [2019] WLR 3398, [2019] 2 Lloyd's Rep 128, [2019] EWCA Civ 10, [2019] 1 CLC 143, [2019] 1 WLR 3398, [2019] WLR(D) 23, [2019] 1 WLR 3514, [2019] WLR 3514 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
MR PETER MACDONALD EGGERS QC
SITTING AS A DEPUTY OF THE HIGH COURT
Case No: CL-2016-000414
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE ASPLIN
and
LORD JUSTICE GREEN
____________________
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Claimant/Appellant |
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- and – |
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(1) AMS DRILLING MEXICO SA de CV (2) ATLANTIC MARITIME SERVICES BV |
Defendants |
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(3) ATLANTIC TIBURON 1 PTE LIMITED (4) EZION HOLDINGS LIMITED |
Defendants/Respondents |
____________________
Nigel Cooper QC (instructed by Stephenson Harwood) for the Respondent
Hearing date: Wednesday 21st November
____________________
Crown Copyright ©
LORD JUSTICE GREEN :
A Introduction
A. The facts
The dispute
The Purchase Order
"1. Agreement
These Terms and Conditions of Business together with this Purchase Order constitute the entire agreement between Atlantic Marine Services BV and its various affiliates and subsidiaries (hereinafter collectively referred to as "the company"[)] and supplier stated in the Purchase Order, (the Seller), for the execution of the work/supply of the goods described in the Purchase Order. Each order by the Company for goods from the Seller shall be deemed to be an offer by the Company to purchase goods/services subject to these Terms & Conditions. Variations or changes to the Purchase Order or these Terms & Conditions shall only be effective if made in writing specifically for such purpose and signed by a duly authorised representative of both parties …"
"10. Default and Termination …
10.2 In the event that, in the Company's sole opinion, the Seller[']s default shall be deemed not capable of remedy to the Company's satisfaction, the Company shall have the right to terminate the Purchase order in part or whole by notice in writing to the Seller …
11. Suspension
The Company may at any time at its sole option suspend the performance of all or part of the Purchase order by giving written notice to the Seller … The Company will grant no compensation or extension of time for any suspension that might result from an act or default caused by the Seller …"
"13. Ownership
13.1Title
to the goods shall pass from the Seller to the Company upon the earlier of: (a) delivery by the Seller and receipt of the goods accepted by the Company; (b) payment, either partial or in full; (c) for designs, drawings, technical information and data when prepared by the Seller …"
"17. Assignment and Subcontracting …
17.4 The Purchase Order/Contract shall enure to the benefit of and be binding upon the successors of the Company and the Seller …"
"21. Governing Law
These Terms & Conditions and any Purchase Order shall be governed by and construed and interpreted in accordance with the laws of England and Wales and the parties hereto irrevocably submit to the exclusive jurisdiction of the High Court in London for the resolution of any disputes arising in connection with the supply of goods under these Terms & Conditions and the relevant Purchase Order/Contract"
The services to be provided under the Purchase Order
The Bareboat Charterparty
"3. Delivery
(a) The Owners shall before and at the time of delivery exercise due diligence to make the Vessel seaworthy And in every respect ready in hull, machinery and equipment for service under this Charter. The Vessel shall be delivered by the Owners and taken Over by the Charterers [in the Gulf of Mexico] …
(c) The delivery of the Vessel by the Owners and the taking over of the Vessel by the Charterers shall constitute a full performance by the Owners of all the Owners' obligations under this Clause 3, and thereafter the Charterers shall not be entitled to make or assert any claim against the Owners on account of any conditions, representations or warranties expressed or implied with respect to the Vessel but the Owners shall be liable for the cost of but not the time for repairs or renewals occasioned by latent defects in the Vessel, her machinery or appurtenances, existing at the time of delivery under this Charter, provided such defects have manifested themselves within twelve (12) months after delivery …
10. Maintenance and Operation
(a) (i) Maintenance and Repairs - During the Charter Period the Vessel shall be in the full possession and at the absolute disposal for all purposes of the Charterers and under their complete control in every respect. The Charterers shall maintain the Vessel, her machinery, boilers, appurtenances and spare parts in a good state of repair, in efficient operating condition and in accordance with good commercial maintenance practice and … at their own expense they shall at all times keep the Vessel's Class fully up to date with the Classification Society [American Bureau of Shipping] and maintain other necessary certificates in force at all times
(c) The Charterers shall keep the Owners and the mortgagee(s) advised of the intended employment, planned dry-docking and major repairs of the Vessel, as reasonably required …
(e) Changes to the Vessel - Subject to Clause 10(a)(ii), the Charterers shall make no structural changes in the Vessel or changes in the machinery, boilers, appurtenances or spare parts thereof without in each instance first securing the Owners' approval thereof …"
Addenda to the Bareboat Charterparty
Delivery of the Rig
The provision of work on the Rig relating to abatement of asbestos
"WHEREAS, [AT1] may desire to engage [McDermott] from time to time to perform services and/or provide materials, goods, equipment or other products in connection with such services as more specifically set forth in an Order, as herein defined (the "Work") …
ARTICLE I
SCOPE OF WORK
…
1.2 Control. This Agreement shall control and govern all Work performed and/or goods or equipment provided by [McDermott] or [AT1] under subsequent written Work Orders or Change Orders. No Work will be performed without a Work Order or Change Order … For the purposes of this Agreement "Work Order" shall mean any written order or written instruction from Company and accepted by Contractor giving Contractor an order to perform any Work referenced in Appendix 1 …
ARTICLE XI
WORK BY COMPANY
11.1 Performance of Work Outside of Scope of Work. [AT1], with [McDermott's] prior written consent, shall have the right from time to time to perform, either directly or through one or more specialist contractors work on various tasks on the Vessel that are not a business of [McDermott] … [AT1] shall be responsible for the costs and expenses of all services provided by these specialist contractors.
11.2 Access and Cooperation. Any work performed by [AT1] or its contractors in accordance with Article XI shall be scheduled in such a manner as to not unduly interfere with [McDermott's] performance of the Work …"
Suspension of works pending payment / payments / settlement discussions
"AMS, as the appointed representative of the Asset Owners pursuant to the two Master Vessel Repair and Modification Agreements … relating to the vessels Atlantic Tiburon I and Atlantic Tiburon 3 (the "Vessels"), we acknowledge your letter … Derived from reading your letter, we understand that [McDermott] refuse to reverse their fixed position to abandon, renounce and refuse to perform the [Modification Agreement] and substantially interfered with AMS's right of position [sic: possession] of the Vessels … AMS informs by this means to [McDermott] of the actions which will be taken by AMS in order to minimize the impact of the damages that potentially will be caused to AMS for [McDermott's] position …"
"… In the letter, AMS outlines the work on the Projects that they wish to continue to perform. As you are well aware, at this time McDermott has suspended the work on the Projects pursuant to the terms of the current Vessel Repair and Modification Agreements for Atlantic Tiburon I … and McDermott is not willing to allow any work to be performed on the vessels until all amounts due and payable have been received … Please note that McDermott is taking these actions due to [AT1] … (the "Owners") failure to continuously pay amount that are due and payable pursuant to the [Modification Agreement], despite our repeated requests that the Owners do so … The suspension of the work for the Projects is an appropriate and legitimate exercise of McDermott's contractual rights based upon the continued failure by Owners to pay long outstanding invoices approved by AMS on behalf of Owners …"
B. The arguments below in relation to jurisdiction
C. The Judgment below
"83. I therefore consider that the Claimant has a good arguable case (or a sufficiently arguable case) that it contracted on behalf of ATI. By this I mean that such a case is consistent with the evidence and may be inferred from that evidence. Indeed, such an inference may prove to be justified at trial. The Claimant's case in this respect has substance and is more than fanciful. Indeed, if this had been an application for summary judgment dismissing the Claimant's claim against AT1, I would have dismissed that application because the Claimant would have a real prospect of succeeding in this allegation."
"84. However, notwithstanding the arguability of the case that AT1 was an undisclosed principal, I think, on the evidence available, that AT1 has the better of the argument that it was not, i.e. AT1's case that it was not an undisclosed principal is more plausible than the Claimant's case that AT1 was an undisclosed principal, for the following reasons:
(1) Even though the Rig was owned by AT1, by reason of the Bareboat Charterparty, AMS was the bareboat charterer and concluded the Bareboat Charterparty in order to advance its own interests in connection with the PEP project. Whether or not AMS was responsible, under the Bareboat Charterparty, to undertake the Purchase Order works, the works were required to enable the Rig to satisfy the PEP requirements. This would have been for the benefit of AMS.
(2) Although AT1 was a party to the Modification Agreement and the Project Management Agreement, there is no evidence that the Purchase Order works were carried out under those Agreements. Indeed, if AT1 was prepared to be identified as a party to those agreements, it is striking that it was not identified as a party to the Purchase Order contract. Furthermore, the relevant authority for the undertaking of the Purchase Order works may have been derived from the Project Management Agreement, but AMS (nor AMS Mexico for that matter) was not the Project Manager appointed under that agreement: instead, AMS Singapore was the Project Manager. In addition, as Mr Cooper QC pointed out, the Project Management Agreement makes no reference to the removal of asbestos (being one of the items of work required under the Purchase Order).
(3) The letter dated 16th October 2013 from AMS to McDermott, in which it describes itself as AT1's "appointed representative", is consistent with AMS having contracted with the Claimant on behalf of AT1. However, there are two matters which lead to the conclusion that AT1 has the better of the argument that this does not relate to the Purchase Order. First, there is no obvious or explicit connection between this letter and the Purchase Order. Second, AMS refers in the letter to McDermott's actions damaging AMS's interests, not AT1's interests ("AMS informs by this means to [McDermott] of the actions which will be taken by AMS in order to minimize the impact of the damages that potentially will be caused to AMS …"). In addition, it is not clear to me how AMS became the "appointed representative", given that the Project Management Agreement was concluded between AT1 and AMS Singapore, not AMS.
(4) It is equally plausible, based on the limited materials available, that AMS or AT1 would be responsible for such works under the Bareboat Charterparty. In many respects, I regarded this as the high point of the Claimant's case in that if AT1 was obliged by the Bareboat Charterparty to ensure that asbestos was removed in order to render the Rig seaworthy and fit for service, there might be said to be a compelling reason for concluding that the contract with the Claimant - which was in part concerned with the abatement of asbestos - was concluded on behalf of AT1 (though not Ezion). There is a lack of evidence that the Purchase Order works were required to discharge AT1's obligations under the Bareboat Charterparty. Accordingly, I am not in a position to determine whether AT1 is responsible under the Bareboat Charterparty and I am not able to say whether or not AMS or AT1 has the better of the argument in this respect. However, even assuming that AT1 - not AMS - was responsible under the Bareboat Charterparty to ensure that the Rig was asbestos-free, I do not consider that this means that the Claimant has the better of the argument that AMS was authorised by AT1 and intended to contract with the Claimant on behalf of AT1. First, it does not follow that the Purchase Order was agreed on behalf of AT1. It is possible that AMS, as the bareboat charterer, undertook the work on its own behalf and would claim recompense from AT1 as the owner. There is no direct evidence that the Purchase Order contract was made on behalf of AT1. Second, it is not obvious that the works other than the removal of asbestos performed under the Purchase Order contract were required to render the Rig seaworthy and fit for service and therefore to have been within AT1's responsibility under the Bareboat Charterparty.
(5) As there is no direct evidence of the authority and intention required to establish a party as an undisclosed principal, and in particular no direct evidence relating to the authority granted by AT1 to AMS or relating to AMS's intention at the time of the Purchase Order contract, taken together with the other matters referred to above, AT1 must have the better of the argument in this respect.
(6) The settlement discussions with Ezion and the payments at the behest of Ezion in 2014-2015 add little to the questions I am asked to consider. However, to the extent that they are relevant, the fact that the settlement discussions contemplated a draft novation agreement whereby the rights and obligations under the Purchase Order contract were to be transferred to AT1 is a factor in favour of AT1 not having been a party to the Purchase Order contract in the first instance."
"85. As far as Ezion is concerned, I consider that there is no good arguable case that Ezion was an undisclosed principal to the Purchase Order contract and, it follows, Ezion has the better of the argument in this respect, for the following reasons:
(1) The Rig was not owned by Ezion. Although Ezion was the parent of AT1, the fact that Ezion was not prepared to own the Rig directly or to enter into the Bareboat Charterparty with AMS, renders it implausible that Ezion authorised AMS to contract with the Claimant. Although Ezion may have benefited from the Purchase Order, it does not mean that AMS was necessarily authorised or intended to contract on Ezion's behalf.
(2) Ezion was not a party to the Modification Agreement and/or the Project Management Agreement.
(3) Even if the Purchase Order works were necessary to discharge the obligations of AT1, as owner, under the Bareboat Charterparty, no similar consideration applies to the position of Ezion, who was not a party to the Bareboat Charterparty.
(4) There is no direct evidence that AMS was authorised by Ezion and intended to contract on behalf of Ezion."
D. The Grounds of appeal / Respondent's Notice
E. The law relating to undisclosed principals
"…In determining who is entitled to sue or liable to be sued on a contract, a useful starting point, where the contract is in writing, is to look at the contract……
Where an agent has such actual authority and enters into a contract with another party, intending to do so on behalf of his principal, it matters not whether he discloses to the other party the identity of his principal, or even that he is contracting on behalf of a principal at all, if the other party is willing….to treat as a party to the contract anyone on whose behalf the agent may have been authorised to contract...
Whether the agent was actually authorised to enter into a particular contract on behalf of a particular principal depends on what passed between the agent and the principal…."
"For present purposes the law can be summarised shortly. (1) An undisclosed principal may sue and be sued on a contract made by an agent on his behalf, acting within the scope of his actual authority. (2) In entering into the contract, the agent must intend to act on the principal's behalf. (3) The agent of an undisclosed principal may also sue and be sued on the contract. (4) Any defence which the third party may have against the agent is available against his principal. (5) The terms of the contract may, expressly or by implication, exclude the principal's right to sue, and his liability to be sued. The contract itself, or the circumstances surrounding the contract, may show that the agent is the true and only principal."
F. The test to be applied: The Supreme Court in Brownlie (2017) and in Goldman Sachs (2018)
"7. An attempt to clarify the practical implications of these principles was made by the Court of Appeal in Canada Trust Co v Stolzenberg (No 2) [1998] 1 WLR 547. Waller LJ, delivering the leading judgment observed at p 555:
"'Good arguable case' reflects … that one side has a much better argument on the material available. It is the concept which the phrase reflects on which it is important to concentrate, ie of the court being satisfied or as satisfied as it can be having regard to the limitations which an interlocutory process imposes that factors exist which allow the court to take jurisdiction."
When the case reached the House of Lords, Waller LJ's analysis was approved in general terms by Lord Steyn, with whom Lord Cooke and Lord Hope agreed, but without full argument: [2002] AC 1, 13. The passage quoted has, however, been specifically approved twice by the Judicial Committee of the Privy Council: Bols Distilleries (trading as Bols Royal Distilleries) v Superior Yacht Services Ltd [2007] 1 WLR 12, para 28, and Altimo Holdings, loc cit. In my opinion it is a serviceable test, provided that it is correctly understood. The reference to "a much better argument on the material available" is not a reversion to the civil burden of proof which the House of Lords had rejected in Vitkovice. What is meant is (i) that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the Court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it. I do not believe that anything is gained by the word "much", which suggests a superior standard of conviction that is both uncertain and unwarranted in this context."
"33. As we agree that this action cannot continue against the current defendant, everything which we say about jurisdiction is obiter dicta and should be treated with appropriate caution. For what it is worth, I agree (1) that the correct test is "a good arguable case" and glosses should be avoided; I do not read Lord Sumption's explication in para 7 as glossing the test; and (2) that the action in tort is governed by Egyptian law and so the Fatal Accidents Act 1976 cannot apply to it, although Egyptian law may in fact allow for a similar claim, should permission ever be given to plead it."
"9. This is, accordingly, a case in which the fact on which jurisdiction depends is also likely to be decisive of the action itself if it proceeds. For the purpose of determining an issue about jurisdiction, the traditional test has been whether the claimant had "the better of the argument" on the facts going to jurisdiction. In Brownlie v Four Seasons Holdings Inc [2018] 1 WLR 192, para 7, this court reformulated the effect of that test as follows:
"… (i) that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it."
It is common ground that the test must be satisfied on the evidence relating to the position as at the date when the proceedings were commenced."
G. How to apply the three-limbed test in Goldman Sachs
Limb (i)
Limb (ii)
Limb (iii)
Relationship with Article 25 of the Recast Brussels Regulation
Exorbitant jurisdiction as a justification?
H. Application of the law to the approach applied by the Judge
I. The application of the test to the evidence
The approach to be adopted on appeal
"With regard to an appeal to this court (which would never have involved a complete rehearing in that sense), the language of "review" may be said to fit most easily into the context of an appeal against the exercise of a discretion, or an appeal where the court of appeal is essentially concerned with the correctness of an exercise of evaluation or judgment - such as a decision by a lower court whether, weighing all relevant factors, a contract of service existed. However, the references in rule 52. 11 (3) (4) to the power of an appellant court to allow an appeal where the decision below was "wrong" and to "draw any inference of fact which it considers justified on the evidence" indicate that there are other contexts in which the court of appeal must, as previously, make up its own mind as to the correctness or otherwise of a decision, even on matters of fact, by a lower court. Where the correctness of a finding of primary fact or of inference is in issue, it cannot be a matter of simple discretion how an appellant court approaches the matter. Once the appellant has shown a real prospect (justifying permission to appeal) that a finding or inference is wrong, the role of an appellate court is to determine whether or not this is so, giving full weight of course to the advantages enjoyed by any judge of first instance who has heard oral evidence. In the present case, therefore, I consider that (a) it is for us if necessary to make up our own mind about the correctness or otherwise of any findings of primary fact or inferences from primary fact that the judge made or drew and the claimants challenge, while (b) reminding ourselves that, so far as the appeal raises issues of judgment on unchallenged primary findings and inferences, this court ought not to interfere unless it is satisfied that the judge's conclusion lay outside the bounds within which reasonable disagreement is possible. In relation to (a) we must, as stated, bear in mind the important and well-recognised reluctance of this court to interfere with a trial judge on any finding of primary fact based on the credibility or reliability of oral evidence. In the present case, however, while there was oral evidence, its content was largely uncontentious."
"15. In appeals against conclusions of primary fact the approach of an appellate court will depend upon the weight to be attached to the findings of the judge and that weight will depend upon the extent to which, as the trial judge, the judge has an advantage over the appellate court; the greater that advantage the more reluctant the appellate court should be to interfere. As I see it, that was the approach of the Court of Appeal on a 'rehearing' under the Rules of the Supreme Court and should be its approach on a 'review' under the Civil Procedure Rules. 16. Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way."
The position of AT1
"I do not consider that this means that the Claimant has the better of the argument that AMS was authorised by AT1 and intended to contract with the Claimant on behalf of AT1. First, it does not follow that the Purchase Order was agreed on behalf of AT1. It is possible that AMS, as the bareboat charterer, undertook the work on its own behalf and would claim recompense from AT1 as the owner. There is no direct evidence that the Purchase Order contract was made on behalf of AT1. Second, it is not obvious that the works other than the removal of asbestos performed under the Purchase Order contract were required to render the Rig seaworthy and fit for service and therefore to have been within AT1's responsibility under the Bareboat Charterparty."
The position of Ezion
(i) Although the Rig was not owned by Ezion it was acquired by an SPV wholly owned by Ezion pursuant to an agreement between Ezion and the parent company of the First and Second Defendants and an associate, by which Ezion agreed to arrange financing and to purchase the rig through its SPV (AT1). Ezion chose not to disclose that agreement so it is not known what responsibilities, other than the provision of finance, it undertook. In view of that failing it was wrong in principle to make any assumption against the appellant (ie in favour of Ezion). It is correct that the Rig was in fact directly owned by Ezion's subsidiary and that AT1 was party to the Charterparty but there was no evidence, and the judge was accordingly wrong to find, that Ezion was "not prepared" to own the Rig directly or to enter into the Bareboat Charter.
(ii) Other points relied upon by the Judge were neutral in light of the reticence of the respondents to provide disclosure.
(iii) The Judge failed to take account of the important evidence of the payment by subsidiaries of Ezion of 2 sums of US$100,000 owed to the appellant under the Purchase Order. The explanatory evidence of Mr Cheah that those sums were owed by those subsidiaries to either the Second Defendant or AMS Singapore was pure hearsay.
(iv) Given that the evidence was incomplete and unsatisfactory the judge should have asked (per Lord Sumption in Brownlie at paragraph [7]) whether there was a plausible (albeit contested) evidential basis for the appellant's case that Ezion was an undisclosed principal. Applying that test the Judge should have found that Ezion provided the financing for the purchase of the Rig, agreed to fund the work needed to make the Rig operational but chose not to disclose the agreement by which it did so. It profited from the deployment of the Rig and (through subsidiaries) paid some of the sums due to the appellant. This was plausible evidence that Ezion was an undisclosed principal.
J. Respondent's Notice: Implications of entire agreement clause / identification of parties
"42. I should start by stating that, given the nature of the doctrine of undisclosed principal, I do not consider that because the party or parties to the contract have been identified in the contract and such party or parties do not include the undisclosed principal, that necessarily means the parties to the contract intended to exclude the possibility of intervention by the undisclosed principal … .
43. I do not consider that there is anything in the nature of the contractual services provided by the Claimant or in the description of the other party as "the company" which necessarily excludes the possibility that the contract was made with an undisclosed principal. There would usually have to be something more, such as an express provision prohibiting the intervention of an undisclosed principal or a contract which concerns the registeredtitle of a named party."
K. Conclusion
Lady Justice Asplin:
Lord Justice Davis:
Note 1 Article 25, “Prorogation of jurisdiction”:
“1. If the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. The agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing; (b) in a form which accords with practices which the parties have established between themselves; or (c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.
2. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’.
3. The court or courts of a Member State on which a trust instrument has conferred jurisdiction shall have exclusive jurisdiction in any proceedings brought against a settlor, trustee or beneficiary, if relations between those persons or their rights or obligations under the trust are involved.
4. Agreements or provisions of a trust instrument conferring jurisdiction shall have no legal force if they are contrary to Articles 15, 19 or 23, or if the courts whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue of Article 24.
5. An agreement conferring jurisdiction which forms part of a contract shall be treated as an agreement independent of the other terms of the contract.
The validity of the agreement conferring jurisdiction cannot be contested solely on the ground that the contract is not valid.” [Back] Note 2 In Article 17 of the Brussels Convention of 27th September 1968 on jurisdiction and enforcement of judgments in Civil and Commercial matters and then in Article 23(1) of Council Regulation (EC) 44/2001 which replaced the Convention. [Back] Note 3 Case 24/76 Estasis Salotti di Colzani Aimo et Gianmario Colzani v RÜWA Polstereimaschinen GmbH [1976] ECR 1831, 1841 at paragraph [7] and Case C-387/98 Coreck Maritime GmbH v Handelsveem BV [2000] ECR I-9337, 9371 at paragraph [13]. [Back]