This document provides a very extensive exam prep outline; it can be used to study, but also saves a lot of time during the exam, as a template for each legislation is included, ready to be copied during the exam (templates include substantive, geographical and temporal scopes, as well as important...
Exam Prep
TOPICS NOT COVERED (but included in resit):
- choice of court
- lis pendens
- service of documents & taking of evidence
- enforcement of attachment orders/provisional & protective measures
CASE
Mozon NV is a company registered in Antwerp (Belgium) that sells furniture from various
providers via its online platform in the Netherlands (mozon.nl). The activities related to the
platform are carried out from Arnhem (the Netherlands). Babic SCA is a Luxembourgish
company with headquarters in Luxembourg that conducts most of its activity in the
Netherlands where its sells 75% of its furniture production. The company concluded a
service contract in 2020 with Mozon NV to sell its designer products through Mozon NV’s
platform. A Dutch Association of Furniture Designers registered in Amsterdam “blacklisted”
Babic SCA after having being notified by mozon.nl and after receiving several activists
complains that the products sold by Babic SCA were not sustainable European designer
pieces as the company claimed, but objects that were produced in Bangladesh under forced
labour conditions, and potentially by underaged workers. The “blacklisting” of Babic SCA by
the Dutch Association for Furniture Designers has attracted hundreds of defamatory
comments in Dutch and English on mozon.nl's website and on the forum of the association.
After finding out about this situation, Babic SCA sent several emails to The Dutch
Association of Furniture Designers and Mozon NV explaining that it does
not produce any of its items in Asia, but in Romania and Morocco. This made the comments
incorrect and they also damaged the company’s image and business. Therefore, the
company requested the removal of the defamatory comments from the websites of Mozon
NV and the Dutch Association of Furniture Designers, including from the association’s
blacklist. All its requests were ignored. Babic SCA wants to initiate court proceedings
against the Dutch Association of Furniture Designers to obtain the removal of its name
from the blacklist and to receive compensation for the entire harm suffered due to the
defamatory remarks and blacklisting.
Would the Luxembourg court have jurisdiction to handle Babic SCA’s whole claim
against the Dutch Association of Furniture Designers?
,4) Sources: Brussels I-bis or National PIL
5) Scopes:
- substantive: Art. 1(1) (not excluded matter Art 1(2))
- geographical: Art 4-6 in conj with Art. 63(1)(a)
- temporal: Art 66 & 81
- legal proceedings instituted on or after 10 January 2015
6) Concurrence: -
7) Application:
- Main rule: Art. 4
- Alternative rule: Art 7(2): event giving rise to damage & place where harmful event
took place (see Bier)
- defamatory claims for online publications (see eDate & Bolagsupplysningen)
8) Conclusion: Luxembourg court does not have jurisdiction to handle whole claim
Due to negative advertising, Babic SCA’s business activity collapsed in the Netherlands. The
company wants to file a claim for financial damages against Mozon NV.
- Which court(s) would be competent to hear the claim for damage between Babic
SCA and Mozon NV?
1) International facts: yes
2) Characterisation: non-contractual claim
3) PIL question: jurisdiction
4) Sources: Brussels I-bis or National PIL
5) Scopes:
- substantive: Art. 1(1) (not excluded matter Art 1(2))
- geographical: Art 4-6 in conj with Art. 63(1)(a)
- temporal: Art 66 & 81
6) Concurrence: -
7) Application:
- Main rule: Art. 4
- Alternative rule: Art 7(2): event giving rise to damage & place where harmful event
took place (see Bier)
- we consider 7(2) because the claim is related to the negative advertising (not related
to the service contract the parties have)
8) Conclusion: Belgian courts, Netherlands – Arnhem area court (Arnhem-Leeuwarden
District Court); Luxembourg court
We reason on the fact the claim was related to the service contract → if it is a matter
related to their service contract which court would be competent to hear such a claim in
relation to the service contract?
, 1) International facts: yes
2) Characterisation: contractual claim
3) PIL question: jurisdiction
4) Sources: Brussels I-bis, Hague Choice of Court Convention or National PIL
5) Scopes:
Brussels I-bis
- substantive: Art. 1(1) (not excluded matter Art 1(2))
- geographical: Art 4-6 in conj with Art. 63(1)(a)
- temporal: Art 66 & 81
Hague Choice of Court Convention:
- substantive scope: Art 1(1) – no exclusive choice of court (Art. 3(1)) – not applicable
6) Concurrence: -
7) Application:
- Main rule: Art. 4
- Alternative rule: Art 7(1)(b) (Art 7(1)(c) indicates that 7(1)(b) has priority): place where
the service were provided/should have been provided
8) Conclusion: Belgian courts, Netherlands – Arnhem area court (Arnhem-Leeuwarden
District Court)
What law would the court retain applicable to the defamation claim filed by Babic SCA and
Mozon NV?
1) International facts: yes
2) Characterisation: non-contractual claim
3) PIL question: applicable law
4) Sources: Rome II or National PIL
5) Scopes:
- substantive: Art. 1(1), but excluded matter Art 1(2)(g) → Rome II not applicable
6) Concurrence: -
7) Application: forum court should apply its own NPIL rules to determine the
law applicable
8) Conclusion: see above
What steps would Babic SCA need to follow to have the Luxembourgish judgement
enforced in the Netherlands?
1) International facts: yes
2) Characterisation: enforcement of a judgement in another MS
3) PIL question: enforcement
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