Boss Group v. Boss France

Boss Group Ltd v. Boss France S.A.1 decided one important point about Art. 5(1) of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 1968 and several less important points. Article 5(1), as is well known, grants jurisdiction “in matters relating to contract” to “the courts for the place of performance of the obligation in question”. But could a plaintiff rely on Art. 5(1) to sue in a court convenient to him even when he denied the existence of a contract between himself and the defendant? This was the major issue decided in the case.

The case concerned a dispute between a manufacturer of fork-lift trucks (an English company, Lancer Boss Group Ltd—”Old Boss”) and a distributor of such trucks (a French company, Boss France S.A.—”Boss France”). For many years Boss France was the subsidiary of Old Boss and distributed fork-lift trucks manufactured by Old Boss in France. In 1994 Old Boss went into administrative receivership. The receivers sold Boss France to a M. Dupuy for one franc; the other assets of Old Boss were sold to Boss Group Ltd (“Boss Group”), another English company which has owned by a German parent corporation (which had its own French distributor). A dispute was now predictable, if not inevitable: the new owner of Boss Group would naturally wish to use its own distributor in France rather than Boss France. But Boss Finance saw that task as its right. Because of their common ownership and close commercial relationship over many years, the relationship between Old Boss and Boss France had never been reduced to writing. Boss Group (the successor to Old Boss) took the view that there was no distributorship contract, exclusive or otherwise, between Old Boss and Boss France, while Boss France alleged that there was such an exclusive distributorship agreement to be inferred from the many years in which Boss France had, in fact, been the exclusive distributor of the trucks.

Before the dispute reached the English courts there was a preliminary skirmish in the French courts. When Boss Group started using its owners’ distributorship in France and refusing to make any further deliveries to Boss France, Boss France commenced proceedings against Boss Group and the new distributor in the Tribunal de Commerce de Corbeil Essones. After success at first instance in restraining the new distributor from distributing Boss equipment and requiring Boss Group to continue to supply Boss France, the Paris Court of Appeal found, substantially, for Boss Group.