ROME 1

Question 1

rules of juristiction

Answer 1

scope of reg/ convention
def domiciled in eu country
Lugano convention country
def dom in UK = 1982 act sch 4
domiciled outside either of the Lugano or eu THEN 1982 sch4 (internal scot rules of jurisdiction apply)

Question 2

brussels 1 reg applies art1(1) and 1(2)

Answer 2

commercial and civil matters ONLY not extend to revenue customs or admin matters.
1(2)
 will not apply to status or legal capacity
bankruptcy
social sec
arbitration
maintenance
wills

Question 3

LTU GmBH v Eurocontrol

Answer 3

civil and commercial matters undefined by the reg. THE eCJ held this term must be given a meaning autonomous not tied with the understanding of one legal system BUT interpreted with the legal principals which emerge of the national legal systems

Question 4

west tankers inc v allianz spa

Answer 4

brussels 1 art 1(2)(d) ARBITRATION.
HELD the decision of the ECJ in this case to the effect that the court proceedings incidentally related to arbitration did come WITHIN SCOPE of the reg and could therefore OUST, at least temporarlily, the courts seat of arbitration!. caused much controversy in UK.
INTRODUCES RECITAL 12

Question 5

RECITAL 12

Answer 5

west tankers is overturned to the extent that it required a court of one member state to decline juris in defence to proceedings in another member state apparently in breach of an arbitration agreement

Question 6

s. 41 1982 act

civil jurisdiction and judgements order 2001

Answer 6

the most gen and fundamental rule is that a person dom in a reg state shall be sued in courts of that state
substantial connection eu = 3months or more

UK =Daniel v foster substantial connection test. can have more than one domicile under these provisions. as 3 month period of residence is not a pre req.

Question 7

brussels 1 art 63

art 4

Answer 7

63for domicile of companies, legal persons
and
4.individuals is left to national law

Question 8

art 62 brussels 1

Answer 8

in determining international jurisdiction thee def domicile is the primary connecting factor.
app law = member state

Question 9

art 42/43

Answer 9

domicile of corp. corp domiciled where it is seat. seatis within the uk if the corp/ part of corp fromed within uk and reg address in uk.

Question 10

art45 brussels 1

Answer 10

domicile of trusts. A trust is domiciled in the state it has the closest and most real connection with.

Question 11

special jurisdiction

Answer 11

in certain circumstances a person dom in another reg state can be sued in another reg state art 7+8 BRUSSELS 1

Question 12

brussels 1 7(1)

Answer 12

in matters relating to contract, in the courts for the place of the performance in Q
CONTRACT European autonomous interpretation
klientwort benson v city of glasgow
Place of performance of the obl in q
de bloos v bouyer

Question 13

klientwort benson v city of glasgow

Answer 13

CONTRACT European autonomous interpretation
an action for restitutiton for sums paid under a contract sub declared void were claims based in unjustified enrichment rather than contract THUS did NOT fall within brussels 1 reg

Question 14

DE BLOOS V BOUYER

Answer 14

the place of performance= gives jurisdiction to the courts and legal basis.
other performance places = irrelavant

Question 15

Boss group ltd v boss france OLD LAW

Answer 15

CONTRACT European autonomous interpretation

relating to contract= autonomous includes cases where one party is denying contract exists

Question 16

s. 7(1)b brussels 1

Answer 16

the place of oblis defined by two situations
1.sale of goods (place in reg state where under contract good were delivered/ should have been) colour drack GbmH v lexx international GbmH
2.Provision of services (place in reg state where under contract services provided/ should have)
WOOD FLOOR SOL ANDREAS DOMBERGER V SILVA TRADE SA

Question 17

colour drack GbmH v lexx international GbmH

Answer 17

sale of goods. where several places of delvery all within the SAME member state. the principal place of delivery should be ID. if not pos. then the claimant could bring proceedings in the place of delivery of his choice.

Question 18

WOOD FLOOR SOL ANDREAS DOMBERGER V SILVA TRADE SA

Answer 18

provision of services.
different member states prov of services. held that the place of performance should be construed as referring to the place where the main prov of services is performed . commercial agency case= added place of performance would be agents dom

Question 19

rehdar v air baltic

Answer 19

passanger wished to claim compensation from airline ECJ held boh place of dep and arrival= closely connect to contract fro prov of services and THUS could both be used

Question 20

7(1)c brussels 1

Answer 20

in relation to contracts other than contracts of services and sale this applies.
PLACE OF PERFORMANCE

Question 21

7(2) brussels 1

Answer 21

in matters relating to tort/ delict/ quasi delict it is where the harmful event may occur/ did occur

A. the place the harmful event occurred
i the place where the damage occurred
ii. the place of the event giving rise to damage

Question 22

Bier v mines potasse d’alsace SA

Answer 22

the place the harmful event occurred 7(2)a brussels 1
the pollution of rhine in France harmed the plants of a market gardener in Netherlands and ec Held that the def could be sued in either the courts for where the damage occurred or for the courts of the place of the event giving rise to this damage

Question 23

zuid- chemie BV v Philipppos Minerlenfabriek

Answer 23

the place where the damage occurred.
in a case where a defective product was produced in germany but used by the claimant in the netheralnds the ec HELD that the place where the damage occurred referred to the place where the damage occurred as a result of the normal usage (Netherlands)
giving rise to damage = where product is produced (Germany)

Question 24

shevill v presse alliance

Answer 24

aii Brussel 1 reg 7(2) the place of the event giving rise to damage.should be interpreted to give jurisdiction to both courts of the place where the defamatory article was produced and any country which the article was published.
courts did limit this by stating: only the courts of where the publisher is established can award damagesfor all harm suffered. in contrast if brought in a place where only distributed then could only award damages for harm suffered in jurisdiction

Question 25

art 7(5) brussels 1

Answer 25

as regards a dispute arsing out of the operations of a branch, agency or other establishment in the courts for the place in which the branch/ agency ect is established

Question 26

def branch agency establishmentart 7(5) brussels 1

Answer 26

eu autonomous meaning: parent body, subject to direction/ control appearance of permance . mere sales agaency will not qual

Question 27

courtaulds clothing brands ltd v knowles

Answer 27

art 7(5) brussels 1. German. one would supply. one was French sub. sub= branch/ agency establishment. q was how did they present themselves to 3rd parties the sub was an extension of company

Question 28

SAR schotte Gmbh v Parfums Rothschilds SARL

Answer 28

art 7(5) brussels 1. other establishment clamaint (not sub) had residence of connecting factor NOT another jurisdiction

Question 29

article 8(1) brussels 1

Answer 29

where a def is a number of def in the courts where any one of them is donm provided the claims are SO CLOSELY CONNECTED that it is to hear and determine together to avaoid the RISK of irreconcible judgements resulting from separate proceedings

Question 30

Land berlin v SAPIR

Answer 30

article 8(1) brussels 1. this centralisation of jurisdiction does not to co-def who are into dom in EU cases where they sued in proceedings brought against several def some of whom are dom in the EU.

Question 31

macdonald v FIFA

Answer 31

``` article 8(1) brussels 1 different nature of cause of action ie contract/ delict does not preclude the app of this connected jurisdiction basis claimant went to watch Scotland match in Estonia. match rescheduled then Estonia did not show. claimant wanted to bring action against SFA jurisdiction = scot and FIFA jurisdiction = Swiss. JOINT ACTION. Jurisdiction established to be SCOT THEN SFA case dropped. FIFA wanted to change jurisdiction held jurisdiction established at the beginning of the case. ```

Question 32

freeport v olle anoldsson

Answer 32

``` article 8(1) brussels 1 specific point of jurisdiction. Proceedings may be consolidated in the domicile of the anchor def even if not the main one. once close connection is established there is no futher need to establish separately the claims were not bought solely for the purpose of removing the main def from the jursitiction of the courts of the member states in which he is dom. ```

Question 33

s.8(3) brussels 1

Answer 33

on a counter claim arising from the same contract or facts on which the original claim was based in the court in which the original claim is pending.

Question 34

s.8(4) brussels 1

Answer 34

in matters relating to a contract if the action may be combined with an action against the same def in matters relating IN REM in immovable property the court the reg state in which the property is situated.

Question 35

protective jurisdiction def

Answer 35

a key notion is that of factum actoris the possibility for the party regarded as the weaker party to bring a claim to his own country

Question 36

art 10-16 brussels 1

Answer 36

PROTECTED INSURANCE CLAIMs Where insurer is dom in a reg state. he may be sued in the courts where he is dom or in the courts where the policy holder is dom. in turn, the insurer must sue the policy- holder in the courts of the latters domicile if that dom is in a reg state

Question 37

art 15 brussels 1

Answer 37

places restrictions on choice of court agreement departing from these rules. GIE V reunion Europeene v Zurich espana

Question 38

art 17-19 brussels 1

Answer 38

protecting consumer contracts- provide for similar set of rules set out in art 17

Question 39

gruber v baywa AG

Answer 39

ART 17 Farmer domiciled in Austria tiles farmhouse roof NOT a consumer! the use was for not outside their trade/ prof when concluding contract CONSUMER= a person regarded as a consumer only if he or she concluded the contract for a purpose OUTSIDE his or her trade or prof.

Question 40

benicasa v defalkit

Answer 40

CONSUMER= a person regarded as a consumer only if he or she concluded the contract for a purpose OUTSIDE his or her trade or prof. ART 17 consumer is an individual in which a contract involved private consumption. never opened to franchise. CANNOT start off as commercial purpose then turn to consumer. IT IS AT THE TIME OF THE CONTRACT IT HAS TO BE CONSUMER PURPOSE ONLY!

Question 41

define consumer contract art 17

Answer 41

includes contract for SOG on instalment of credit terms, loan terms minance for credit

Question 42

art 17(1) c brussels 1

Answer 42

a person who pursues commercial or prof activities in the members state of the consumer dom. directs such activities to that memberstate and contract falls within the scope of such activities

Question 43

pammer v reederi karl Schluter GmbH and hotel alpenhof GmbH v Heller joined

Answer 43

directing activities. mere accessibility of the traders website in a member state does nto by itself constitute a directing of activities.

Question 44

emrek v sabranovic

Answer 44

doesn't change that the proof...…..

Question 45

18(1) brussels 1

Answer 45

member state where consumer dom

Question 46

art 18(2) brussels 1

Answer 46

member state where consumer not dom

Question 47

art 19 brussels 1

Answer 47

places restictions on choice of court agreements departing from these rules

Question 48

art 20-23 brussels 1

Answer 48

protective prov for contracts of employment

Question 49

art 24 brussels 1

Answer 49

exlusive jurisdiction courts have jurisdiction no matter the dom of def.

Question 50

art 24(1) brussels 1

Answer 50

in proceedings which have as their object right IN REM in immovable tenancies or immovable property the courts in which the property is situated webb v webb

Question 51

webb v webb

Answer 51

art 24(1) brussels 1. son owned apartment. put in trust for father, personal rights are NOT rights IN REM.

Question 52

rosler v rottwinkel

Answer 52

``` art 24(1) brussels 1. tenancies - immovable object. rent for max period of 6 consec months the def dom jursiticiton can also be considered if the person is natural/ landlord and tenant dom in same reg state ```

Question 53

art 24(2) brussels 1

Answer 53

in proceedings which have as their object the validity of the constitution the nullity or dissolution of companies or other legal persons associations of natural or legal persons or the decisions of their organs the courts of the reg state in which the company/ legal person/ association has its seat.

Question 54

art 24(4) brussels 1

Answer 54

in proceedings with the reg or validity of patents trade marks designs or others the courts in which they are reg/ has been applied for

Question 55

art 24(5) brussels 1

Answer 55

in proceedings concerned with the enforcement of judgements, the courts of the reg state in which the the judgment has been or is to be enforced

Question 56

Art 25

Answer 56

PROROGATION of jurisdiction: choice of court agreements. the jurisdiction of of the chosen court is exclusive unless the parties have chosen otherwise. the law governing the substantive validity of the choice of court agreemen is the law of the chose forum APPLIES REGARDLESS THE DOMICILE OF PARTIES

Question 57

coreck maritime gmbh v handelsveen

Answer 57

art. 25effective even if it does not directly state the reg state it is referring to as long as the reg state can be ID

Question 58

art 25 brussels 1 conditions for applying a choice of law agreement

Answer 58

a in writing/ evidence of writing b.in a form that accords with parties practice that is established between themselves. c. in international trade. in a way that accords with usage of which the parties are or ought to have been aware. principle of sep and severability APPLIES REGARDLESS THE DOMICILE OF PARTIES

Question 59

elefanten stan v jacqmain

Answer 59

s.25(1) rules for laying out choice of law rules ie the formal requirements are absolute and cannot be augmented by any national law.

Question 60

art 31 brussel 1

Answer 60

the reg attempts to limit pot. conflicts of jurisdiction by adopting a first come, first served. s.31(1) where actions come within the exclusive juristicion of several courts , any court other than the court first seized shall decline jurisdiction in favour of that court

Question 61

enrich gasser GmbH v Misat

Answer 61

will apply even if the court seized first in violation of an exclusive choice of court agreement art 31 reverses the effect of this csae

Question 62

art 32 brussels 1

Answer 62

lays down rules for determing when court is seized

Question 63

kolden holdings ltd v rodette commerce ltd

Answer 63

the same parties. immaterial whether or not either party is domiciled in a member state what matters is the degree of identity between the interests of the entities in the sense that a judgment given against one of them would have the force of res judicata as against the other. he first instance decision of Aikens J. The Court concluded that it is possible for an assignee to be "the same party" as the original claimant for the purposes of establishing which court was first seised in proceedings involving the same cause of action in different member states, under the "first come, first served" regime laid down under Article 27 of Council Regulation 44/2001. The court concluded that the test established by previous case law, that the parties had to be identical, did not rule out separate legal entities.

Question 64

the same cause of action

Answer 64

art32 European autonomous interpretation. drouot assurances SA v consolidated Metallurgical Industries Where proceedings were brought in two member states, the second proceedings should not be automatically stayed where there was a difference in the actions such as an additional cause of action in the second claim. Lis alibi pendens is not appropriate in such a case. Cases which in fact involved different parties (ship owner and insurer) could be treated as the same for purposes of the convention only if the interests of the differing parties were genuinely identical

Question 65

related actions

Answer 65

art 32 discretionary/ expedient to hear and determine them together/ avoid the risk of irreconcilable judgements starlight shipping co v allianz marine & avatiopn versicherungs AG

Question 66

ARTICLES 33 and 34 brussels 1

Answer 66

the recast introduces 2 new provisions which grant the m/s courts a discretion to stay proceedings in circumstances where the court of a m/s has already been seized; whereas art 33 of the recast operates where the proceedings involve the same cause of action and the same parties. art 34 concerns conflicting proceedings involving related actions.

Question 67

1982 sch 4

Answer 67

applies where the subject matter is within the scope of brussels 1 and def dom in UK. sch 4 allocates jursitiction of the courts to the appropriate part. basic rule that where person is domiciled in a part of the ulk action against that person must be raised in courts for that part unless sch 4 otherwise provides

Question 68

differences between brussels 1 and sch 4 1982

Answer 68

a. sch 4 rule 3(h) proceeings concering debt/ immovable the courts of the part of the UK where that property is situated has jursitiction b. sch4 rule 4 proceedings which as their object a decision of an organ of a company or other legal person or of an association of natural perosns may be brought in the courts of the part of UK where the person has their seat c. brussels 1 reg have prov for insurance which are not in sch 4 and sch4 consumer dontracts do not apply to insurance d. no equivalent in sch 4 to brussels 24(4) e. sch4 12 has no requirement for form and proof of agreement of prorogation of agreement f. no equivalent in sch4 of reg lispendens

Question 69

art 29-34 brussels 1

Answer 69

concurrent jurisdiction the pos of parallel proceedings lis pendens.

Question 70

art 29 brussels 1

Answer 70

court first seized rule without prejudice to art 31(2) proceedijngs involving same cause of action and between same action bought in different m/s the court first seized shall have its own motion stay until proceedings established . if jursitiction established by court that first seized any other court shall decline in favour of court first seized.

Question 71

art 30 brussels 1

Answer 71

where actions are pending in the courts of different m/s any court other than the court first seized may stay its proceedings actions deemed to be related when they are so closly connected that it is expedient to hear and determine them together to avoid risk of irreconcivable judgements resulting from sepeate proceedings

Question 72

art 20 brussels 1

Answer 72

concurrent jursitiction again is close purpose of validity. choice of court more effective.

Question 73

sch 8 1982 act

Answer 73

applies where def is dom in scot or lugani convention or outwith scope of Lugano rule 2(h) where the def is not dom in the UK jurisdiction is given to the courts for any place where any moable property belonging to him has been arrested OR any immovable property in which he has any beneficial interest is sit. rule 2.i determine a property/ possessory right the place where property is situated has jurisdiction rule 2j interdict for where an alleged wrong is committed. rule 2k in proceedings concering a debt secured over immovable property, the property where its sit has juris.

Question 74

Forum non conveniens

Answer 74

is a plea raised by a def that a court which has jurisdiction in an action should decline its action because just determination of the dispute requires that the action should be tried else where.

Question 75

Owusu v Jackson

Answer 75

if a court assumes jurisdiction under the reg then it is precluded from utilising the doctrine of forum non convieniens plea may not be made where the brussels 1/ Lugano convention result applicable.

Question 76

sim v robinrow

Answer 76

FORUM NON CONVIENS BURDEN OF PROOF IS ON THE DEF TO PROVE the plea can never be sustained unless the court is satisfied that a another another tribunal , having competent tribunal which is preferable in which the case may be tried more suitably with the interests of justice

Question 77

societe du gaz de paris v les armateures francais

Answer 77

FORUM NON CONVIENIENS. the court has to consider how best the ends of justice in the case before it. non conviens means is to find the forum more suitable for the ends of justice. as litigation in that forum is more likely to secure the ends of justice

Question 78

ARTICLE 4(1)

Answer 78

applicable law in the absence of choice by the parties 4(1)(c) a contract relate to a right in rem in immovable property shall be governed by the law of the country where the property is situatd NOTE THAT HABITUAL RESIDENCE IS DEFINED FOR CERTIAN PURPOSE IN ARTCILE 19

Question 79

4(2)

Answer 79

other types of mixed contracts where not covered under 4(1) the contract shall be govered by the law of the country where the party required the characteristic performance of the contract HAS HABITUAL RESIDENCE

Question 80

how do you determine characteristic performance

Answer 80

reg 19 the characteristic of performance= having regard to its centre of gravity

Question 81

ark therapeutics v true north capital

Answer 81

issued letter of intent to engange enterprenerial activity. breach letter of intent unilateral obl. obligation to pay. ENGLISH LAW. applying obl to pay = characteristic not normally seen ascertainment of app

Question 82

ophthalmic innovations international v ophthalmic innovations

Answer 82

lenses are defective. indemnity clause implimentented. characteristic of performantce was in califonia law as it was a califonian company

Question 83

apple corps ltd v apple comp

Answer 83

both use the same logo. used law that was most closely connected = English article 4(3)(4)

Question 84

article 4(3)

Answer 84

``` overrides 4(1) and(2) if it is clear from all other circumstances that the company is more closely connected with country other than that indicted then law of that country will apply recital 20 an escape clause should provide that the law of that state applies ```

Question 85

4(5)

Answer 85

societte novella des properties de l'a SA v BV machine fabririke BOA

Question 86

non applicability of art 4(1) and (2)

Answer 86

4(4) | cannot be determined will be governed by the state most closely connected

Question 87

art 5

Answer 87

specific contracts | contracts of carriage

Question 88

art 7

Answer 88

specific contracts | insurance

Question 89

art8

Answer 89

specific contracts | employment

Question 90

at6

Answer 90

specific contracts consumer contracts 1.defines consumer and trader 2.this is app as long as brought in consumer residence 3.consumer can bring action in hab residence as long as trader has a base in habitual residence or directs activities to that country. 4. VERY IMPORTANT- when choosing law applicable parties decide but CANNOT deprive the consumer of protection afforded to him. 5. will not apply if contract of carriage/ contract relating to right in rem of immovable property a contract to the supply of services where the services are to be supplied to the consumer exclusively in a country other than that in which his habitual residence

Question 91

article 3(3)

Answer 91

mandatory prov and freedom to choose app law | law applicable chosen and stated in agreement

Question 92

caterpillar financial services corp v snc passion

Answer 92

us company gave advance to frenche company then defected agaisnt the loan agreement. US company demand loan+interedt express clause infavour of ENGLISH LAW THUS FRENCH LAW VOID

Question 93

article 9

Answer 93

OVERRIDING MANDATORY PROV SAFEGUARDING PUBLIC INTEREST DO THE MANDATORY PROV = UNLAWFUL IN THAT CASE CAN BE OVERRIDDEN- NATURE AND PURPOSE AS TO APP OR NON APP

Question 94

article 9(2)

Answer 94

UNFAIR CONTRACT TERMS S.27

Question 95

article 9(2)

Answer 95

UNFAIR CONTRACT TERMS S.27 APPLIES UK RES ONLY

Question 96

Mcfeetridge v stewarts & Lloyds

Answer 96

individual has capacity either under the proper law of the contract or law of doimicile

Question 97

art 13

Answer 97

incapacity | company must have capacity both under proper law and the country of corp CARSE V COOPER

Question 98

dr lizardi v cheise

Answer 98

probably has suffiiant in the case of ordinary contracts marriage settlements special rule for capacity require each parties dom disp of land lex stitus for capacity

Question 99

article 10

Answer 99

consent and material validity shall be determined by the law ehich gioverns it can use habitualresidence if it would not be reasonable to determine his conduct specified by s,1

Question 100

egon oldendorff v libra corp

Answer 100

shipping bulk containers. GERMAN company agreed to charter. implied a choice of englsih law into contract. HELD JAPANESE COMPANY COULD HAVE CONSENTED

Question 101

art 11

Answer 101

FORMAL VALIDITY

Question 102

art 12

Answer 102

``` INTERPREATATION PERFORMANCE PRESCRIPTION CONSEQUENSES OF NULLITY IN regard to performance and steps taken in effect to defective performance regard shall be had to law of country that performance takes place ```