To what extent is a choice-of-court agreement binding on third parties? Article 9
Example : Example (cont’d):
Charlotte’s three children have concluded an agreement specifying an Austrian court to settle their mother’s succession. Their mother had previously chosen Austrian law to govern her succession.
During the proceedings, it emerges that Charlotte had a fourth child who was born in Spain and is of Spanish nationality. Is the choice-of-court agreement binding upon that child who did not sign it?
The child from Spain may accept the jurisdiction of the Austrian court by appearing before said court and not challenging its jurisdiction (Article 9.1[1]).
The Spanish child may also challenge the jurisdiction of the Austrian court and argue that he was not a party to the choice-of-court agreement. In the latter case, the Austrian court must decline jurisdiction in favour of the Spanish court (Article 9.2[1]), which has jurisdiction on account of the last habitual residence of the deceased (Article 4[2]).