Agreement on jurisdiction concluded in conformity with the Lugano ...

Case no. BS-16186/2021-HJR
Order made on 11 October 2021

A
vs.
Jutlander Bank A/S

The appeal before the Supreme Court concerned the validity of a jurisdiction clause in a credit agreement entered into between Jutlander Bank A/S and X A/S. A had signed the credit agreement on behalf of X A/S and in his personal capacity as a guarantor.

The main issues were whether the agreement on jurisdiction should be regarded as a consumer agreement in respect of A, and whether the agreement had been entered into in accordance with the requirement for a written agreement in the Lugano Convention.

The Supreme Court first concluded that A should not be considered a consumer under the agreement entered into, and in this connection gave importance to A’s affiliation with X A/S, in which he was CEO and the beneficial owner when he assumed the guarantee obligation.

The Supreme Court then stated, with reference to EU case law, that the requirement for a written agreement in the Lugano Convention, according to which agreements conferring jurisdiction must be in writing or evidenced in writing, had been met, as the clause was entered into as part of a written agreement, which, based on an overall assessment, had to be regarded as demonstrating consensus between the parties.

On that basis, the Supreme Court concluded that A was bound by the agreement on jurisdiction that he had signed.

The High Court had reached the same conclusion.