## Facts

- A French construction company and a Saudi project owner entered a construction contract for work in Saudi Arabia.
- The contract included a forum-selection clause designating a Saudi Arabian court for disputes arising from the contract.
- A dispute arose, and the contractor sued in the designated Saudi court and initially obtained a favorable judgment.
- On appeal, a Saudi appellate court set aside that judgment and dismissed the action on the ground that the designated Saudi court lacked jurisdiction.
- The contractor then sued the project owner in the Paris Commercial Court, asserting that the forum-selection clause had become ineffective because the chosen Saudi court had definitively declined jurisdiction.
- The project owner contested French jurisdiction based on the contractual forum-selection clause.

## Issues

1. When a contract selects a foreign court, does a definitive foreign ruling that the selected court lacks jurisdiction render the forum-selection clause ineffective in later proceedings elsewhere?
2. May a French court accept jurisdiction by taking note of the foreign court’s refusal, without re-examining the foreign court’s jurisdictional reasoning?

## Decision

- The court rejected the project owner’s appeal on points of law and upheld the decision recognizing jurisdiction in the Paris Commercial Court.
- The court held that once the chosen foreign court definitively declares itself incompetent, the forum-selection clause cannot be invoked to exclude jurisdiction of another otherwise competent court.
- The court approved the French appellate court’s approach of relying on the foreign decision of incompetence as a procedural fact showing the failure of the contractual choice of forum.
- The matter proceeded in the Paris Commercial Court for adjudication on the merits, with French jurisdiction confirmed.

## Legal Principles

- A forum-selection clause in favor of a foreign court loses effect when the designated court definitively declines jurisdiction over the dispute.
- A court asked to hear the case may take the foreign decision of incompetence as given and draw the consequence that the contractual choice of forum has failed.
- Accepting jurisdiction in these circumstances is permissible to prevent denial of justice where strict enforcement of the clause would leave the claimant without an effective forum.
- Respect for the foreign court’s ruling is maintained where the later-seized court does not re-litigate the foreign court’s jurisdictional analysis but acts on the fact of the refusal.

## Conclusion

A contractual choice of a foreign forum cannot bar proceedings in another competent court after the chosen forum has definitively declined jurisdiction; French courts may accept jurisdiction based on that refusal to ensure the dispute can be heard.


Thinet Int’l S.A. v. Saudi Basic Indus. Corp., No. 08-17.587 (Cass. 1re civ. Sept. 30, 2009)