ROME 1 Flashcards
rules of juristiction
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)
brussels 1 reg applies art1(1) and 1(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
LTU GmBH v Eurocontrol
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
west tankers inc v allianz spa
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
RECITAL 12
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
s. 41 1982 act
civil jurisdiction and judgements order 2001
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.
brussels 1 art 63
art 4
63for domicile of companies, legal persons
and
4.individuals is left to national law
art 62 brussels 1
in determining international jurisdiction thee def domicile is the primary connecting factor.
app law = member state
art 42/43
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.
art45 brussels 1
domicile of trusts. A trust is domiciled in the state it has the closest and most real connection with.
special jurisdiction
in certain circumstances a person dom in another reg state can be sued in another reg state art 7+8 BRUSSELS 1
brussels 1 7(1)
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
klientwort benson v city of glasgow
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
DE BLOOS V BOUYER
the place of performance= gives jurisdiction to the courts and legal basis.
other performance places = irrelavant
Boss group ltd v boss france OLD LAW
CONTRACT European autonomous interpretation
relating to contract= autonomous includes cases where one party is denying contract exists
s. 7(1)b brussels 1
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
colour drack GbmH v lexx international GbmH
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.
WOOD FLOOR SOL ANDREAS DOMBERGER V SILVA TRADE SA
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
rehdar v air baltic
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
7(1)c brussels 1
in relation to contracts other than contracts of services and sale this applies.
PLACE OF PERFORMANCE
7(2) brussels 1
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
Bier v mines potasse d’alsace SA
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
zuid- chemie BV v Philipppos Minerlenfabriek
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)
shevill v presse alliance
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
art 7(5) brussels 1
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
def branch agency establishmentart 7(5) brussels 1
eu autonomous meaning: parent body, subject to direction/ control appearance of permance . mere sales agaency will not qual
courtaulds clothing brands ltd v knowles
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
SAR schotte Gmbh v Parfums Rothschilds SARL
art 7(5) brussels 1. other establishment clamaint (not sub) had residence of connecting factor NOT another jurisdiction
article 8(1) brussels 1
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
Land berlin v SAPIR
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.
macdonald v FIFA
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.
freeport v olle anoldsson
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.
s.8(3) brussels 1
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.
s.8(4) brussels 1
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.
protective jurisdiction def
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
art 10-16 brussels 1
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
art 15 brussels 1
places restrictions on choice of court agreement departing from these rules.
GIE V reunion Europeene v Zurich espana
art 17-19 brussels 1
protecting consumer contracts- provide for similar set of rules set out in art 17
gruber v baywa AG
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.
benicasa v defalkit
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!
define consumer contract art 17
includes contract for SOG on instalment of credit terms, loan terms minance for credit
art 17(1) c brussels 1
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
pammer v reederi karl Schluter GmbH and hotel alpenhof GmbH v Heller joined
directing activities. mere accessibility of the traders website in a member state does nto by itself constitute a directing of activities.
emrek v sabranovic
doesn’t change that the proof……..
18(1) brussels 1
member state where consumer dom
art 18(2) brussels 1
member state where consumer not dom
art 19 brussels 1
places restictions on choice of court agreements departing from these rules
art 20-23 brussels 1
protective prov for contracts of employment
art 24 brussels 1
exlusive jurisdiction courts have jurisdiction no matter the dom of def.
art 24(1) brussels 1
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
webb v webb
art 24(1) brussels 1. son owned apartment. put in trust for father, personal rights are NOT rights IN REM.
rosler v rottwinkel
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
art 24(2) brussels 1
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.
art 24(4) brussels 1
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
art 24(5) brussels 1
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
Art 25
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
coreck maritime gmbh v handelsveen
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
art 25 brussels 1 conditions for applying a choice of law agreement
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
elefanten stan v jacqmain
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.
art 31 brussel 1
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
enrich gasser GmbH v Misat
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
art 32 brussels 1
lays down rules for determing when court is seized
kolden holdings ltd v rodette commerce ltd
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.
the same cause of action
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
related actions
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
ARTICLES 33 and 34 brussels 1
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.
1982 sch 4
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
differences between brussels 1 and sch 4 1982
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
art 29-34 brussels 1
concurrent jurisdiction the pos of parallel proceedings lis pendens.
art 29 brussels 1
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.
art 30 brussels 1
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
art 20 brussels 1
concurrent jursitiction again is close purpose of validity. choice of court more effective.
sch 8 1982 act
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.
Forum non conveniens
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.
Owusu v Jackson
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.
sim v robinrow
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
societe du gaz de paris v les armateures francais
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
ARTICLE 4(1)
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
4(2)
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
how do you determine characteristic performance
reg 19 the characteristic of performance= having regard to its centre of gravity
ark therapeutics v true north capital
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
ophthalmic innovations international v ophthalmic innovations
lenses are defective. indemnity clause implimentented. characteristic of performantce was in califonia law as it was a califonian company
apple corps ltd v apple comp
both use the same logo. used law that was most closely connected = English article 4(3)(4)
article 4(3)
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
4(5)
societte novella des properties de l’a SA v BV machine fabririke BOA
non applicability of art 4(1) and (2)
4(4)
cannot be determined will be governed by the state most closely connected
art 5
specific contracts
contracts of carriage
art 7
specific contracts
insurance
art8
specific contracts
employment
at6
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
article 3(3)
mandatory prov and freedom to choose app law
law applicable chosen and stated in agreement
caterpillar financial services corp v snc passion
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
article 9
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
article 9(2)
UNFAIR CONTRACT TERMS S.27
article 9(2)
UNFAIR CONTRACT TERMS S.27 APPLIES UK RES ONLY
Mcfeetridge v stewarts & Lloyds
individual has capacity either under the proper law of the contract or law of doimicile
art 13
incapacity
company must have capacity both under proper law and the country of corp CARSE V COOPER
dr lizardi v cheise
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
article 10
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
egon oldendorff v libra corp
shipping bulk containers. GERMAN company agreed to charter. implied a choice of englsih law into contract. HELD JAPANESE COMPANY COULD HAVE CONSENTED
art 11
FORMAL VALIDITY
art 12
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
