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Summary GOD - Conflict of Laws
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InternationalJurisdiction
Brussels I-bis Regulation
❖ Court of court clause for jurisdiction
Scope
▪ Substantive: Article 1
- Civil and commercial matters [autonomous concept per LTU v. Eurocontrol – even public
authorities acting as a private person]
- Matters excludes family law, social security and arbitration
▪ Geographical:
o GENERALLY, Article 4: persons domiciled in a Member State shall be sued on the court of
their member state (therefore – defendant must be dom in a MS)
▪ 62 – to determine if party is domiciled in MS court shall apply national law
(natural persons?)
▪ 63 – company, legal person or association of a legal or natural person is
domiciled where it has:
a) Statutory seat;
b) Central administration; or
c) Principle place of business
63(2) also means registered office if no: place of incorporation if no: place under
law of formation took place
EXCEPTIONAL GEO SCOPES
▪ 6 – If defendant is not domiciled in a MS the jurisdiction , the jurisdiction of each MS
shall be determined by the law of that MS subject to 18(1), 21(2), 24 + 25
▪ 24 - exclusive grounds of jurisdiction:
▪ 25 - choice of court clause: regardless of domicile but chosen court of MS
▪ 18 – consumers: universal scope
▪ 21 – employer - Universal – no criteria which apply
, ▪ Temporal: Articles 66 and 81
o Proceedings after 10th of January 2015
Steps
1) Article 24 – Exclusive jurisdiction rules [Immovable property] DIFF GEOGRAPHICAL SCOPE not
domicile but individual grounds
▪ 24(1) – place of location of the immovable property in a Member State of the European
Union [limited to rights in rem – property law right then court of location has exclusive
jurisdiction. This the is country with the closest connection based.
▪ 24(2) – EXCEPTION – claimant and defendant have their habitual residence in same
country then that country has jurisdiction along side the location of the property IF
SHORT TERM tenancy of less than 6 months.
2) Article 25 - Forum clause – Choice of court clauses DIFF GEOGRAPHICAL SCOPE regardless of
domicile so long as it is EU Court.
CAN NOT SET ASIDE ARTICLE 24 (Exclusive jurisdiction) or CONFLICT ARTICLES 15, 19 AND 23 (Weaker parties)
▪ 25(1) Neither party need to be from the EU but court(s) chosen must be in the EU
(see below formal and substantive validity requirements)
▪ Formal validity
▪ 25(1)(a) – Written or Oral but evidence in writing (MSG case) OR
▪ 25(1)(b) – In accordance practices between parties OR
▪ 25(1)(c) – In accordance with international trade or commerce usage (Trasporti
Castelletti - usage not necessary that it exists in all EU-states and a form of publicity is not always
required
▪ Substantive validity
▪ Powell v. Duffryn para 1 – particular legal relationship e.g. company and
shareholders
▪ Castelletti – connection between court and parties/case not required
EFFECT OF CHOICE OF COURT
▪ Chosen will be exclusive unless state otherwise
▪ Lis pendens rules apply – If court is seized somewhere else first it will stay proceedings then
have to apply BIS articles 29-34
3) Article 10-23 – Special rules on weaker party protection
, !!!NOTE!!!: Action against stronger party: besides court of defendant also court plaintiff (insurance/consumer) or place where
plaintiff/employee habitually carries out work (employment). Action against weaker party: only court of defendant
i. Insurance contracts: 10-1
▪ All other Insurance disputes – Article 10-14 mandatory rules for protecting weaker party
▪ Article 15 - Exception to choice of court – where agreement concluded after dispute or
provision in policy/contract against weaker party unless benefits
▪ Article 16 - Disputes regarding large risks (commercial nature)– parties’ possibility to
depart from Art 10-14 for weaker by agreement.
ii. Consumer contracts: 17-19
▪ 17(1) Conducted by a natural person against a business or company outside their trade
or profession
▪ 17(1)(a) – Sale of goods by instalment credit terms
▪ 17(1)(b) – Loan repayment by instalments/credit to finance sale of goods
▪ 17(1)(c) – Other contracts when company pursues activities in MS consumer or directed
activities to MS consumer/several MS and contract falls within scope of activity (related
to sales by internet)
▪ 18(1) – Consumer may bring proceedings in the Courts of MS in which other party is
domiciled (Article 63 for domiciled definition) OR in courts of place where consumer is
domiciled
▪ 18(2) – Proceedings against the consumer can be brough by the other party only in
courts where MS is domiciled (Article 62 for domiciled definition)
▪ CASE LAW
⮚ Pammer and Hotel Alpenhof – Website and traders activities shows evisages
doing business with consumers in one or more Ms e.g. Language, phone
numbers, domain name, itineries
⮚ Mühlleitner v Yusufi explained 17(1)(c) - contract does not have to be concluded
at a distance, it can be in person but still visible online
⮚ Emrek v Sabranovic clarified - No requirement of a causal link between the
marketing activity directed to MS of consumer and the actual contract as Emrek
did not find information via the website
If requirements not meant then fall back on the main rule in Article 4
▪ 19 Choice of court clause
i. Rules in 17-18 may be departed from by agreement concluded after dispute
arisen OR
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