Point of law: whether the commercial court has a right to revise the choice of court made by the parties to a contract and declare the lack of jurisdiction over the ensuing contractual dispute in the absence of defendant’s motion to that effect as well as any violation of court’s exclusive jurisdiction or public policy?

Alternative attitudes: 1) the court when considering a suit under such circumstances may declare the lack of jurisdiction at its own initiative; 2) the court may not do so, as long as the defendant by his own conduct has constructively admitted the jurisdiction of this court.

Ratio decidendi: in the view of the Presidium, the second approach is legally correct. Any different interpretation would contradict the principle of adversarial procedure as well as the constitutional right to judicial defence. On a separate note, the Presidium opined that in the international practice the intrusion of the court at its own initiative into the parties’ choice of competent court (including the cases when such choice was made by way of a constructive recognition of the court’s jurisdiction) is considered as a restriction of the right to justice (provided that there is no violation of exclusive jurisdiction), as is evidenced by Art 24 of the Regulation № 44/2001 of the Council of the European Union of 22 December 2000 “On Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters”; Arts  318, 322 of Bustamante Code, passage 2 of para 38 of Code of Civil Procedure of the Federal Republic of Germany.

Practical consequences: the Judgment says that prior court decisions in analogous cases if inconsistent with this interpretation may be reversed in the procedure and within the limits envisaged by Art 311 of the Commercial Procedure Code.