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Samenvatting Cases Private International Law
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Samenvatting alle geziene cases, per onderdeel Summary of all cases seen, by component
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Cases PIL1. Introduction
Gasser Principle of mutual trust - Facts: Italian company goes to Italian court despite the choice of court clause ->
mutual trust ensures that MS not circumvent the lis alibi pendens rule -> Austrian
judge has to wait and has to trust that the Italian judge will apply the rules in the
way they should have to be applied
- B1A is a regulation that is harmonized: a detailed set of general rules which all MS
should trust
Turner Principle of mutual trust - No anti-suit injunction in BIa, because goes against the principle of mutual trust (and
the effectiveness of the convention: undermines the effet utile of B1A)
Owusu Need of an international - We can’t have forum non conveniens (which means: a natural court may decline to
element exercise jurisdiction on the ground that a court in an other state, which has also
jurisdiction would objectively be a more appropriate forum for the trial of the action)
Lindner Need of an international - Everything about the case was Tsjech -> but he doesn’t have Tsjech nationality ->
element went of the radar -> so where can I sue this guy? is there an international element? -
> yes the fact that he has German nationality might trigger the German courts in the
case
- So nationality is not a decisive factor for the international element: fact that
defendant has different nationality than claimant may suffice to have an
international element, but is not required
Commerzbank Need of an international - After the contract was concluded the consumer moved to Switzerland ->
element international element? -> predictability vs protection of the weaker category
- In this case: protection of the weaker category
Eurocontrol Civil and commercial matters - A dispute between an individual and the state is NOT a civil and commercial matter
when the public body is exercising its public powers
- Subject matter of the action: state action only falls outside B1A if it is an acta iure
imperii (a decision as a public authority in the exercise of its powers), so public
authorities are not by definition excluded from B1A
Fahnenbrock Civil and commercial matters - To be excluded: government action needs to have an immediate & direct effect on
the legal relationship; if any distance between capacity as government and the
relevant facts of case, then no such effect -> no acta iure imperii -> within B1a
scope
Khun Civil and commercial matters - CJEU abandons its own Fahnenbrock test and emphasizes context: origin of the
dispute => no more immediate & direct effect required => Court emphasizes
context to determine acta iure imperii
,Dinant Bar v Maitre DN Civil and commercial matters - Bifurcation of jurisdiction possible: part of case can be under B1a scope, part can fall
outside scope
Supreme Site Services Civil and commercial matters - Eurocontrol criteria: litigation may be excluded by reason of
o Either the legal relationship between parties (‘acting as public body’)
o Or of the subject matter of the action
Rich Arbitration exclusion - Whether exception applies, depends on the subject-matter of the dispute: all
measures auxiliary to arbitration also fall under exclusion (eg. Appointment of
arbitrator by a court)
Van Uden Arbitration exclusion - Consistent with Rich: Arbitration exception applies to proceedings ancillary to
arbitration proceedings
- Provisional measures are not in principle ancillary to arbitration proceedings -> they
are ordered in parallel to these proceedings
- Interim measures by the national court or art. 35 BIa (cannot be made if the subject
matter falls outside the scope)
West-Tankers Arbitration exclusion - Proceedings on arbitral anti-suit injunctions fall under exclusion
- Incidental question on the validity of arbitration agreements do fall under B1a scope
Gazprom Arbitration exclusion - The enforcement of arbitral awards falls outside the BIa -> because would amount to
anti-suit
, 2. STEP 1: Exclusive jurisdiction – article 24
- Rights in rem and tenancies of immovable property -> lex rei sitae
- The incorporation of companies and certain other aspects of company law
- The validity of entries in public registers
- The registration or validity of registered intellectual property rights
- The enforcement of judgements
Reichert Rights in rem - Extends to actions which aim to determine the extent, content, ownership or
possession (>< many national laws) of immovable property OR the existence of
other rights in rem therein
Gaillard Rights in rem - Rights in rem which works erga omnes <-> rights in personam
- Right in rem has to be the object of the proceedings -> right in rem has to be
subject-matter of case for A24 to apply, not merely be involved in the case
- Action for rescission of a contract for the sale of land -> action in personam (not a
right in rem as object, so it is a right in personam)
Weber v Weber Rights in rem - No real ius commune on what a right in rem is
- The yardstick for whether proceedings have erga omnes character, in the absence of
European harmonization, is and remains national law => deciding erga omnes by
virtue of national law may justify A24 application
- Right of first refusal? -> erga omnes
Webb v Webb Rights in rem - Claim of trustee obligations -> not an action in rem within the meaning of art. 24 of
the convention
- Claim formulation may determine if case falls under exclusive jurisdiction (eg. Claim
to a trust containing immovable property is not a right in rem, whereas claiming
ownership of the property would be)
Schmidt v Schmidt Rights in rem - Bifurcation of claims concerning A24 application is possible
- Actions seeking removal of name form land register concerns right in personam, A24
does not apply
Kerr v Postnova Rights in rem - Co-ownership case -> refused to pay -> suit -> under art. 24? -> no
Hacker Rights in rem - A24 only applies to tenancies, not right of use (eg. Lease, usufruit, gift,…)
- If tenancy included in wider agreement then no longer A24 application (such as
other services: pick-up from airport,..)
Klein Rights in rem - Time sharing on building does not fall within scope of tenancy, A24 does not apply
BVG Companies - The subject-matter of the case is the contract itself. BVG pleads that the enter into
the contract is invalid on the basis of infringement of the statutes by the
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