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The first EFTA proposal was strongly resisted by the UK on the grounds that it was completely impractical to expect confirmation in writing for all contracts in international trade (cf. Schlosser 0 J No. C59 of 5 March 1979 pages 124-125). The proposal would also mark a regression from ECJ jurisprudence. The EFTA delegations them came up with a formula drawn from Article 9 of the 1980 UN Convention on the Law Applicable to International Sales. (This formula is set out on page 26 at footnote 4 of GC-EXEQ/7/86.) Most delegations consider that the EFTA proposal does not alter the substance of Article 17, and in the end, would be prepared to accept it. I have been concerned that the EFTA proposal does mark a restriction of the scope of Article 17, albeit to a marginal extent. The text put forward in Working Document No. 18 does show a further concession to the UK position, however, in that the form of the agreement can now be in accordance with practices the parties have established between themselves - whether or not those practices are widely known or regularly observed by other parties in that trade. At the last meeting I made the point that parties ought to be bound by agreements which are in a form which corresponds to practices they have established between themselves whether or not they are engaged in international trade.
Subject to your views and those of copy addressees, I suggest that the UK could put forward the following compromise formula:-
"Such an agreement conferring jurisdiction shall either be in writing or evidenced in writing or in a form which accords with practices which the parties have established between themselves or, in international trade or commerce, which accords with practices in that trade or commerce of which the parties are or ought to have been aware and which are widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned".
It will be seen that this draft also incorporates a few minor drafting changes.
Final Clauses
You will see from the note of the meeting that I held to the line that the Parallel Convention should be kept open, with a formula along the lines of the Hague Conventions for subsequent accessions. I am bound to say that this position is not receiving much support except - perhaps naturally from the Permanent Bureau of the Hague Conference. What makes our position difficult is that we cannot point to any clear example of a third state (i.e non EEC or EFTA state) which is interested in acceding to this Convention. I mentioned the Convention to Marc Jewett at the Canadian Ministry of Justice when he was in London a few months ago and he showed some interest, but that is all. Bearing in mind Ian Mathers comments and the point you have
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