Yearbook of European Law - Vol. 4

By A. Barav; D. A. Wyatt | Go to book overview

The Brussels Convention*

ADRIAN BRIGGS

After the excitement of last year, the Court gave judgment in only one of the cases pending before it on the interpretation of the Brussels Convention. It is sad to record once again that the judgment leaves unanswered far more questions than one would have wished, and that the decision will be authoritative only in very narrow and particular fact situations.

Case 32/88 Six Constructions v Humbert(6th Chamber, 15 February 1989)

Humbert was an engineer domiciled in France. Six was a company thought to be domiciled in Belgium (though it later emerged that it had been incorporated in Sharjah and had only a branch in Belgium, the case proceeded, as it had done before the national court, on the basis that it was a Belgian defendant). In March 1979 Humbert was engaged at the Brussels office of Six, by a written contract which he did not sign, to undertake employment in a number of countries. He worked for some months in Libya, Abu Dhabi, and Zaire. In December 1979 he was dismissed, and in due course he sued Six in France for arrears of salary, money due in lieu of notice, and various other alleged entitlements under the contract. In January 1988 the Cour de Cassation referred to the Court two questions1 on the interpretation of Article 5(1) of the Convention.

Six wished to be sued (if anywhere) in Belgium. It argued first that the contract of employment contained a choice of court clause for Belgium: it did, but the fact that Humbert had never signed his name upon the document meant that the clause fell foul of the formal requirements of Article 172 and could not be relied on, at any rate as against Humbert.3 It then argued that it was entitled to defend in the contracting State in which it was domiciled, in accordance with Article 2.

Humbert wished to sue in France, where he was domiciled. It is hard to see the basis upon which he thought he could do so once the defendant declined to submit; and equally hard to see why the Cour de Cassation thought an

____________________
*
© Adrian Briggs, 1989, Fellow of St. Edmund Hall, Oxford.
1
The exact form of which is unimportant.
2
The case concerned the original text of the Convention, not the amended version appearing as Schedule 1 to the Civil Jurisdiction and Judgments Act 1982, and therefore did not discuss the provision dealing with forms usual in trade or commerce of which the parties ought to have been aware. But it is doubtful that this would have made any difference.
3
It can be argued, even if it has not yet been expressly so held, that the rule is a one-sided one which protects the non-signer, but which cannot be used by the party whose terms they are against a non-signer.

-323-

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