Contratto ImpresaEuropa - Cedam

624 CONTRATTO E IMPRESA / EUROPA
who sold goods in Israel through an agent resisted enforcement of an Israeli
judgment on the grounds that the agent had merely acted as a channel
of communication without any authority to bind the defendant.
Where any defendant is sued in a federal jurisdiction, it was suggested
in Adams vs. Cape Industries that it must have the requisite connection
with the particular State which gave judgment (for example, Texas, not
simply anywhere in the US), unless the judgment is from a federal, rather
than a State, court ( 28 ).
(ii) Submission
A foreign court to which a defendant has submitted will also be seen as
jurisdictionally competent in the eyes of English law. The most obvious
means of submitting is by voluntarily pleading to the merits. However, the
defendant will be protected if he appears solely to challenge the jurisdiction
of the foreign court by section 33 of the Civil Jurisdiction and Judgments
Act 1982, which states that an appearance solely to contest the jurisdiction
of the court or to ask it to dismiss or stay proceedings for another country’s
courts or for arbitration, or to protect or obtain the release of property
seized or threatened with seizure shall not constitute submission ( 29 ).
Nonetheless, the scope of the provision is uncertain ( 30 ) and hence a
defendant still needs to tread very carefully. However, it is tentatively suggested
that appearing, for example, to have a default judgment set aside,
or pleading both to jurisdiction and to the merits at the same time because
local procedure so requires should not constitute submission. In all
cases, the key issue is whether the purpose was solely to challenge jurisdiction.
Hence, an appeal on the merits to a higher court against a default
judgment would constitute submission.
A defendant may also have contractually agreed ( 31 ) to submit litigation
to the courts of a particular State. It is uncertain whether the contractual
term must be express or can also be implied into a contract. It was suggested
obiter in Blohn vs. Desser ( 32 ) that a sleeping partner in a firm which
had been conducting business in Austria could be treated as implicitly
( 28 ) [1990] Ch. 433, pp. 484-492.
( 29 ) Compare the pre-Act position in Henry vs. Geoprosco International Ltd [1976] QB
726.
( 30 ) See Briggs-Rees, pp. 541-543.
( 31 ) In a suitable case of reasonable detrimental reliance on a party’s assurance that he
will agree to litigation in a particular jurisdiction, submission might occur by estoppel.
( 32 ) [1962] 2 QB 116.