|A Dutch Seller and a German Buyer entered into a contract for the sale of a low-floor bus which, according to the Buyer, had to be fitted with a shock-cushioning seat. Failing this particural kind of seat, the Buyer sued the Seller in Germany since the Seller’s subsidiary through which the transaction was made was located in Germany. The Seller denied this, alleging that it had its place of business in the Netherlands and that it did not have a subsidiary in Germany; rather, the company which entered into negotiations with the Buyer was an independent commercial agency.
The Court of First Istance dismissed the Buyer’s claim. The Buyer appealed.
The Appellate Court held that the question of the applicability of Art. 5, No. 5 of the European Council Regulation (44/2001) on Jurisdiction and the Recognition and Enforcement of Judgements in Civil and Commercial Matters did not have to be decided since the contract contained a valid choice-of-forum clause in favor of the seller´s place of business. In reaching this conclusion the Court inter alia held that as far as the question of jurisdiction was concerned, it was irrelevant whether the parties agreed to the Seller’s standard terms or to the ones of the Buyer. Pursuant to Art. 19 CISG -- which was applicable to the contract because Germany and the Netherlands are Contracting States [Art. 1(1)(a) CISG] -- the interpretation of contracts with two conflicting sets of standard terms should lead to the application of at least those provisions which do not differ. While the Seller´s and the Buyer´s standard terms were otherwise conflicting, they contained the same provision as far as juridsdiction was concerned (seller´s place of business). According to the Court, however, the result would be the same even if the "last-shot doctrine" was considered to be applicable, since the Seller’s standard terms were those exchanged last.