TRW Ltd v Panasonic Industry Europe GmbH & Anor

For the purposes of an exclusive jurisdiction clause under the Regulation (EU) No 1215/2012, consensus must be clearly and precisely demonstrated, but need not appear in the jurisdiction clause read in isolation. The court applies the autonomous European standard together with the domestic three-limb jurisdiction test.

Parties may bind themselves in advance to contractual terms governing future supplies, even where they are not obliged to trade. Clear terms may therefore displace the usual last-shot analysis and prevent later inconsistent purchase conditions from taking effect unless the agreed method of variation is followed.

TRW claimed damages concerning allegedly defective resistors supplied by Panasonic from Germany to England. Panasonic relied on previously acknowledged general conditions providing for German law and exclusive jurisdiction in Hamburg. TRW relied on later purchase orders referring to its own terms, which provided for English law and jurisdiction.

Panasonic applied to set aside service and for a declaration that the English court lacked jurisdiction under article 25 of the Regulation (EU) No 1215/2012. Alternatively, it sought a stay because related proceedings concerning similar resistors were pending in Michigan. The central issues were whether the parties had clearly and precisely agreed the Hamburg jurisdiction clause and, if not, whether the English proceedings should be stayed.

1. Article 25 jurisdiction. The court applied the autonomous European Union requirement that agreement to jurisdiction be clearly and precisely demonstrated, together with the domestic three-limb test: a plausible evidential basis, an assessment of factual issues where possible, and, where reliable assessment is unavailable, a good arguable case. In this case the limbs merged into the question which side had the better argument on the documentary evidence.
2. The customer-file document signed by TRW acknowledged Panasonic’s general conditions and, in context, their applicability to subsequent supply contracts. Although it created no obligation to buy or sell, it bound the parties to use those conditions for future trades unless Panasonic agreed otherwise in writing.
3. The general conditions expressly provided that divergent buyer conditions would not be valid even if Panasonic delivered without reservation. Their clear drafting displaced the ordinary last-shot analysis. TRW’s later purchase orders and the related deliveries therefore did not displace the previously agreed terms.
4. Global price negotiations and an attempted amendment of terms concerning United States supplies did not alter the contractual position for European supplies. The general conditions established the necessary written consensus for exclusive Hamburg jurisdiction. The application was therefore allowed, service was set aside, and the court proposed to declare that Hamburg had exclusive jurisdiction.
5. Article 34 stay. The stay issue did not arise. The judge nevertheless stated that, if necessary, he would refuse a stay. The Michigan judgment would involve different parties and potentially different law, and a jury verdict might not provide equivalent findings. A stay was not necessary for the proper administration of justice.