Lloyd's Maritime and Commercial Law Quarterly
NON-EXCLUSIVE JURISDICTION CLAUSES AND SUBMISSION BY APPEARANCE
Kurz v. Stella Musical
In Kurz v. Stella Musical Veranstallung GmbH,1 Mr Kurz, an English resident, agreed in 1988 with a German company, Stella M, to provide finance for the staging of the musical Starlight Express in Germany, in return for which he was to be entitled to a share in the net receipts from the production. These financial arrangements, set out in the common form Subscription Agreement, were expressed to be governed by English law and non-exclusive jurisdiction was conferred on the English courts.
In 1990, as a result of actions by a new controlling interest in Stella M, Mr Kurz started proceedings against the company by serving a writ out of the jurisdiction claiming DM 507, 691 as money due under the Subscription Agreement. The defendants contested the jurisdiction of the English courts, which the plaintiff claimed was founded on Art. 18 and/or Art. 17 of the Brussels Convention.2 The plaintiff contended that the defendants had, by their conduct, done acts beyond those necessary solely to contest jurisdiction or, alternatively, that they had not made their intention to challenge clear at a sufficiently early stage, with the result that they had entered an appearance under Art. 18. Failing that, the plaintiff claimed that Art. 17 provided the English courts with jurisdiction by virtue of the non-exclusive jurisdiction clause in the Subscription Agreement. Hoffmann, J., found in favour of the plaintiff on the strength of his Art. 17 argument but rejected his argument on Art. 18.
Article 18
The plaintiff sought first to rely on Art. 18 of the Brussels Convention, claiming that, although the issue of a summons under R.S.C. Ord. 12, r. 8 within the period
1. [1992] Ch. 196.
2. Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. For the amended text of the Convention, see the Civil Jurisdiction and Judgments Act 1982, Sched. 1.
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