Article 25 of the Recast Brussels Regulation which requires an agreement conferring jurisdiction to be ‘in writing or evidenced in writing’ is not satisfied by a clause in the contract being in writing and the consent being solely implied from conduct of the parties.
The consent itself has to be in writing or evidenced (or confirmed) in writing.
In a dispute as to jurisdiction, the party denying the jurisdiction of the English courts argued that a contract between themselves and the defendant was implied from conduct at the discharge point and that such implied contract was entered into on the terms of the bill of lading including an exclusive jurisdiction clause.
The court found that, even assuming that there was a contract between the parties implied from their conduct, that was not sufficient to satisfy the requirements of article 25 of the Regulation and there was no binding exclusive jurisdiction clause ‘in writing or evidenced in writing’.
The case is Pan Ocean Co Ltd v China-base Group Co Ltd.