Jurisdiction in case of a supplemental agreement to an assignment agreement (OGH 30.03.2022, 8 Ob 13/22b)

Created by Mag. Bianca Holzer |
Corporate Law , Civil Litigation

1. Facts of the case

An assignment agreement was concluded between B (defendant) and K (plaintiff). Under the assignment agreement, B acquired shares of a limited liability company (GmbH) from K. The assignment agreement contains an agreement on jurisdiction and stipulates that amendments to the assignment agreement must be in writing and that oral side agreements to the assignment agreement do not exist.

Approximately 2 months later, a supplemental agreement to the assignment agreement was concluded, which contains a payment obligation on the part of B. The supplementary agreement does not contain a jurisdiction agreement. The supplemental agreement does not contain any agreement on jurisdiction and does not refer to the agreement on assignment.

K now sues B for payment from this payment obligation under the supplemental contract. B opposes the court's lack of jurisdiction.

2. Austrian Supreme Court (OGH) decision 8 Ob 13/22b

Agreements on jurisdiction (according to Art 25 of the EuGVVO, Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters) must be based on an actual and concurrent declaration of intent by the parties for jurisdiction. The concurring declaration of intention must be clear and precise. It should be ensured that the agreement between the parties is certain and fixed.

The agreement of will has to be proved by the party invoking the clause (OGH, RIS-Justiz RS0114192).

The existence of a concurring declaration of intent is to be assessed according to the circumstances of the individual case. The requirements for the validity of jurisdiction agreements are to be interpreted narrowly (and autonomously) because jurisdiction agreements are not to become unnoticed contents of the contract. The interpretation of the jurisdiction clause is a matter for the national court seised. In doing so, it has a margin of appreciation.

The plea of lack of jurisdiction of the B can therefore only refer to the fact that the present dispute (also) concerns a dispute “arising out of” or “in connection with” the assignment agreement, because these two agreements form an inseparable unit according to the intention of the parties.

When the written supplemental agreement was concluded, B was already a shareholder of the limited liability company (GmbH). If there had been no agreement on the contents of the supplemental agreement, this would not have changed his legal position acquired with the assignment agreement, even if the contents had already been discussed before the assignment agreement as part of the joint plan for the financing and development of the intended group of companies.

Therefore, if the court is of the opinion that the action does not concern a dispute “arising out of” or “in connection with” the assignment agreement (including the jurisdiction clause), this view is justifiable. Whether or not a different result of interpretation would be justifiable due to the surrounding circumstances has no significance beyond the individual case.

3. Conclusion

If a supplemental contract is also to be subject to the same jurisdiction agreement from the main contract, either the jurisdiction clause must be included in the supplemental contract or the jurisdiction clause of the main contract must be expressly referred to, i.e. referenced.

Otherwise, obligations arising from the supplemental agreement could also be sued at other courts which are not subject to the jurisdiction clause of the main agreement.