Brussels Ia THEORY Flashcards
1
Q
main goals
A
- uniformity
- legal certainty
- predictability
2
Q
general principles
A
- mutual trust
- actor sequitur forum rei
- international element
- predictability
- autonomy (choice of court)
3
Q
acta iure imperii
A
- not caught by BIa
- public authority acts within its exercise of powers (Eurocontrol)
- it needs direct and immediate effect (Fahnenbrock)
- when the public body is acting in a private capacity, it can be civil and commercial (Kuhn)
- the existence of the power on paper is enough (Steenbergen)
- litigation can be split (Dinant)
- preference for the legal relationship between the parties (Obala)
- look at the powers in concreto with abstract criteria (Eurelec Trading)
- depends on the actual views by the authorities of their powers (Movic)
- it needs discretion (Rina)
4
Q
arbitration exception
A
- look at the subject matter of the dispute (Rich)
- interim measures don’t concern arbitratoin as such (Van Uden)
- if the related procedure doesn’t have arbitration itself as a subject, BIa applies (West Tankers)
- through Title 3, excluded matter can be brought into BIa (Steamship, J v. H Limited)
5
Q
matrix
A
- exclusive jurisdiction (24)
- jurisdiction by appearance (26)
- protected categories (10-23)
- choice of court (25)
- general jurisdiction (4)
- special jurisdiction (7-9)
- residual jurisdiction (29-32)
- loss of jurisdiction (29-32)
- provisional and protective measures (35)
6
Q
exclusive jurisdiction: rights in rem and tenancy
A
- locus rei sitae
- action must be based on a right in rem or a tenancy
- restrictive interpretation (Webb v Webb, Reichert, Gaillard, Schmidt v Schmidt)
- rei sitae qualification subject to the qualification under national law (Ellmes Property Services, Weber v Weber
- for tenancies it can also be rights in personam, but it can’t be time-share or complex travel arrangements (Klein, Hacker v Euro-Relais)
- for short-term non-professional lets = domicile of defendant, narrow alternative (Roompot Services)
- forum shopping not possible: judge has to look at the principal object of the proceedings (but formulate your claim a certain way)
7
Q
exclusive jurisdiction: company law
A
- only life and death of companies + existence of decision of their organs
- only disputes in which a party is challenging the validity of a decision by an organ of the company
- restrictive interpretation (BVG, BSH Hausgeräte, Koza v Akcil)
8
Q
consumers (17-19)
A
- it’s not because you are a consumer under secondary EU law that you are a consumer under art 17 (Ryanair v. DelayFix, Pillar Securitisation) (but: substantive validity of choice of court may be impacted)
- pure contracts of transport are excluded
conditions
- contract: active consumer, reciprocity (Ilsinger)
- concluded by the consumer (Bonnie Lackey)
- consumer contract
> non-professional use (Gruber)
> no general pre-existing knowledge required (Wurth Automotive, Petruchova, Reliantco)
> dynamic title consumer (Schrems)
> default contract or directed activities criteria (Pammer Alpenhof, Emrek)
9
Q
employment (20-23)
A
- forum actoris = sue in place of employment (employee is anchor point: Noguiera et al v Ryanair)
- subordination, dual capacity (Holterman)
- contract is relevant, not the actual exercise = favor laboris (Markt24)
- place of performance is where the work hasn’t been carried out if the rupture isn’t the fault of the employee (Markt24)
- promissory note + former employer (ROI Land Investments)
- lis pendens has precedence (Jamieson)
10
Q
valid choice of court (25): requirements
A
- factual established consent
- agreed on a court/courts
- that will settle disputes
- which have arisen/may arise
- in connection with a particular legal relationship
11
Q
choice of court: consent in writing
A
- parties explicitly mention the acceptance of the clause and it needs to be clear and precise (Colzani)
- requirements regarding click wrapping (CarsontheWeb)
- draw the attention to the GTC, reasonable care + show the actual consent (Tilman and Unilever)
12
Q
choice of court: established practice
A
- the fact that the buyer doesn’t specifically reject the GTC doesn’t suffice for there to be a choice of court
- it has to start with some written confirmation (Segoura)
13
Q
choice of court: lex mercatoria
A
- actual or presumed awareness of a usage may be shown that the parties previously had commercial or trade relations so it may be regarded as an established practice
- it needs to be proven
14
Q
choice of court: law applicable to formation of consent
A
- art 25 doesn’t say anything about the law applicable to the formation of consent
- unilateral/asymmetrical/hybrid choice of court is allowed as long as options are effectively limited
- lex fori prorogati = all issues will be solved under the domestic law of the chosen court, including its conflict of laws rules -> the validity of the forum clause is determined by the law of the designated forum
- renvoi au second degré: almost always excluded in PIL, but: recital 20
15
Q
choice of court: competition law and privity
A
- EU consumer law can have an impact on the validity through exhaustive harmonisation (Ryanair v DelayFix)
- choice of court can extend to non-contractual obligations if there is a closeness between the contract and the non-contractual obligation (Apple Sales v eBizzcuss)
> this will most likely be irrelevant for cartel cases (CDC) - privity: choice of court doesn’t pass down into the chain unless the third party has consented (Refcomp)
> exception: bills of lading (Coreck Maritime)
> in cartel cases with a follow-on claim: also privity, unless subrogation (CDC)
