In December 2014, the following article was published in the International Law Office ("ILO") Litigation Newsletter:

'In writing' requirement can be met by terms and conditions with prorogation clause

Contributed by Oblin Melichar
December 02 2014

On February 27 2014 the Supreme Court ruled in a case(1) in which the plaintiff argued for international jurisdiction based on the rules for disputes regarding individual employment contracts, as outlined in Chapter 5 of the Lugano Convention 2007. The Supreme Court found that there was an individual employment contract under Article 18 of the Lugano Convention.

The plaintiff claimed that he had worked for the defendant almost exclusively in Austria during the relevant period (international jurisdiction is based on the location at which an employee last regularly worked). In doing so, he deviated from the facts found by the trail court (to which the Supreme Court is bound), according to which he had worked primarily in Bulgaria and Germany during the relevant period.

The Supreme Court can deviate from the facts found by a trial court only where the trial court solely used documents or admissible indirect evidence. In this case, the facts challenged in the appeal were based on the direct testimony of the plaintiff and a witness; thus, the court could not deviate from them.

Further, the plaintiff could not base his petition on a prorogation clause interpreted under Article 21 of the Lugano Convention because the 'in writing' requirement in Article 23(1)(a) was not met. While this requirement can also be met by referencing terms and conditions which include a prorogation clause, in cases such as this, standing European Court of Justice and Supreme Court case law requires a contract's text to refer explicitly to the terms and conditions.(2) It was undisputed that the parties had not concluded a written contract; thus, the 'in writing' requirement had not been met.

For further information on this topic please contact Klaus Oblin at Oblin Melichar by telephone (+43 1 505 37 05), fax (+43 1 505 37 05 10) or email (This email address is being protected from spambots. You need JavaScript enabled to view it.). The Oblin Melichar website can be accessed at


(1) OGH, February 27 2014, 8 Ob A 38/13s.

(2) ECJ 1976, 1831 marginal note 12 - Estatis Salotti/Rüwa; RIS-Justiz RS0115733; in particular, 1 Ob 98/11k; Brenn, Europäischer Zivilprozess marginal note 56; Tiefenthaler in Czernich/Tiefenthaler/Kodek, Europäisches Gerichtsstands- und Vollstreckungsrecht³ Art 23 EuGVVO marginal note 29.

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