## Facts

- IBH-Holding AG, a German public limited company, adopted amendments to its articles of association at a 1980 general meeting attended by shareholder Powell Duffryn plc, an English company.
- The amended articles included a jurisdiction clause providing that any shareholder, by subscribing for or acquiring shares, submits to the courts having jurisdiction at the company’s registered office for disputes between the shareholder and the company or its organs.
- Powell Duffryn subscribed for registered shares in several IBH capital increases and received dividends.
- IBH later entered insolvency; its liquidator, Wolfgang Petereit, sued Powell Duffryn in Germany seeking (i) unpaid amounts allegedly due on subscribed capital and (ii) repayment of dividends allegedly received without entitlement.
- Powell Duffryn challenged German jurisdiction; the trial court rejected the objection.
- On appeal, the German appellate court referred questions on the interpretation of Article 17 of the 1968 Brussels Convention (as amended) concerning agreements conferring jurisdiction.

## Issues

1. Whether the concept of an “agreement conferring jurisdiction” in Brussels Convention Article 17 is autonomous and can include a jurisdiction clause contained in a company’s articles of association for disputes between the company and its shareholders.
2. Whether Article 17’s formal requirements are satisfied against shareholders, regardless of how they acquired their shares, when the clause is in the articles and the articles are publicly accessible (lodged or registered).
3. Whether disputes between a company and its shareholders “as such” satisfy Article 17’s requirement that disputes relate to a “particular legal relationship.”
4. Whether the national court must determine, by interpreting the clause, which disputes fall within its scope.

## Decision

- The court held that “agreement conferring jurisdiction” in Article 17 is an autonomous Convention concept.
- A jurisdiction clause in the articles of a public limited company, adopted in accordance with applicable national law, constitutes an Article 17 jurisdiction agreement for disputes between the company and its shareholders.
- Article 17’s formal requirements are satisfied as to any shareholder, irrespective of how shares were acquired, when the clause is contained in the articles and the articles are lodged for shareholder access or entered in a public register.
- The “particular legal relationship” requirement is met if the clause may be interpreted as referring to disputes between the company and its shareholders as such.
- It is for the national court to interpret the clause and determine which disputes are covered.

## Legal Principles

- Article 17’s “agreement conferring jurisdiction” is interpreted independently of national labels to ensure uniformity and predictability of jurisdiction.
- Shareholders can be treated as consenting to a jurisdiction clause embedded in corporate articles when the clause is adopted under corporate law procedures and made publicly accessible.
- Public accessibility of the articles can satisfy Article 17’s protective and evidentiary form requirements for jurisdiction agreements, including for later-acquiring shareholders.
- The corporate relationship of shareholding can constitute a sufficiently defined “particular legal relationship” for Article 17, if the clause targets company–shareholder disputes.
- Determining whether specific claims fall within the clause is a matter for the referring national court’s interpretation of the clause’s scope.

## Conclusion

A jurisdiction clause in a public limited company’s articles can bind shareholders under Brussels Convention Article 17 when properly adopted and publicly accessible, and the national court must decide whether the concrete company–shareholder claims are within the clause’s scope.


Powell Duffryn PLC v. Petereit (Case C-214/89), 1992 E.C.R. I-1745 (C.J.E.U. 1992)