An interesting decision from Denmark, noted recently by WSCO Advokatpartnerselskab https://www.lexology.com/library/detail.aspx?g=6d6b72da-f890-4cf3-9075-21752902d70e
Pursuant to a contract to carry containers from China to Denmark, the Danish importer booked carriage with Danish freight forwarder who sub contracted to a Danish shipping company under an agreement made in Shanghai by the parties’ respective Chinese subsidiaries. The shipping company issued a waybill naming the forwarder as consignee. This contained an exclusive jurisdiction clause in favour of the High Court in London. The importer sued the forwarder and its insurers in the Danish High Court for loss of three containers in rough weather during the voyage, and the forwarder then sought an indemnity under the waybill from the shipping company. The Danish shipping line sought to a have the indemnity dismissed by reference to the exclusive jurisdiction clause.
One would have thought the shipping line’s application for dismissal would be a dead cert under Article 25 1 of the 2012 Brussels Regulation (Recast) which provides.
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.
The Danish Court held that the jurisdiction agreement would prevail over the mandatory rules in the Danish Merchant Shipping Act if the contract of carriage were international in nature. But this was not the case here, given that both the shipping company and the freight forwarder are Danish companies with their head offices in Denmark and that the place of delivery of the goods is in Copenhagen where the importer was domiciled. So the case proceeds in the Danish High Court