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Conflict of Laws Notes for Final Exam
Final Exam Structure – 3 hours
- Part A (30 points) – case with 3 sub questions
- Part B (55 points) – case with 4 sub questions
- Part C (15 points) – essay question
Jurisdiction
Week 6: Jurisdiction I: Intro & Choice of court
KC 1: History
Brussels Convention 1968
- Unified rules of jurisdiction to assist in the recognition and enforcement of each
other’s judgements
- Double treaty: deals with jurisdiction and rules of recognition and enforcement
- Ratified by original 6 members of the EC
- Amended in 1978, 82, 89, 96 – correspond to the year of accession of other MS
o They consolidate some case law of the EU Court of Justice into the convention
o Adapted certain elements to deal with specific nature of new MS to the EC
Lugano Convention 1988
- European Free Trade Association: integration of internal trade but does not go as far
as EC
- Parallel convention alongside Brussels convention and parallel alongside EFTA
o But Lugano Convention is a copy of the Brussels convention
- Signed by the members of EFTA
- Some have subsequently become members of the EU, and hence, stepped out of
Lugano Convention and joined the European system
- Amendments led to discrepancies
o Led to amendment of the Lugano convention in 2007
o Applies in Switzerland, Norway, and Iceland
Two different regimes
- Both in the field of public international law based on PIL conventions
- How does this become Europeanized?
- Treaty of Amsterdam 1997: granted the EU the possibility to use EU instruments to
also regulate the field of private international law
o Denmark: complete opt-out
o UK and Ireland: opt-out but were able to on an individual basis to opt-in to
regulations
Brussels I
Brussels II-bis
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Brussels I Regulation (Nr. 44/2001)
- Brussels I-bis Regulation (Nr. 1215/2012)
o There is now a disparity again between the Brussels convention and the
Lugano convention
KC 2: Scope and structure of Brussels I-bis Regulation
Substantive scope: Art. 1
- Civil and commercial matters
o E.g., performance contracts, compensation claims on the base of tort, property
law disputes, etc.
o Excluding family law and law of persons, bankruptcy, social security,
arbitration
o Dealt with in other areas of law
- “Civil and commercial matters” autonomous concept
o LTU v Eurocontrol: objectives of convention/regulation and general principles
in all MS (thus, contract with public authority that acts in exercise of its
powers excluded)
Geographical scope: Art. 4-6
- Defendant domiciled in EU MS (see Art. 62 and 63)
o Art. 62: Defendant domicile if he is a natural person
o Art. 63: Legal person
- Not domiciled: Art. 6 – entitled to refer to other sources of PIL
- Exception for scope of Art. 24 and 25 (different) and 18 and 21 (universal)
o Art. 24: exclusive jurisdiction – issues of immovable property
o Art. 25: choice of court clause
o Universal scope: no criteria that apply to determine when we can use these
articles
o Art. 18: consumer contracts – regardless of domicile of company
o Art. 21: employment contracts - regardless of domicile of employer
Temporal scope: Arts. 66 & 81
- 10 January 2015 – any proceedings commenced after that date
Structure
Main Rule Art. 4 Step 4
Alternative Jurisdiction Rules Art. 7 – 9 Step 4
Special Rules Art. 10 – 23 Step 3
Exclusive Jurisdiction Rules Art. 24 Step 1
Forum clause Art. 25 Step 2
Tacit submission Art. 26 Step 5
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Lis pendens Art. 29 – 34
Provisional/protective Art. 35
KC 3: Exclusive jurisdiction: Art. 24
- Limited to rights in rem – binds everyone
- Art. 24(1) – immovable property – location of the property concerned
o Exception 24(1) section 2 – if both the claimants and defendants have their
habitual residence in the same country, then another country also has exclusive
jurisdiction alongside the country where the property is located
o If the dispute at hand relates to a short-term tenancy of less than 6 months
o Who would have jurisdiction?
Up for the claimant to decide where they would rather bring the claim
- Art. 24(2) – validity, nullity, dissolution companies: place of sear of company
(according to national law)
- Art. 24(4) – registration or validity IP rights: place deposit or registration
o GAT v Luk: applies regardless of whether validity is raised by way of an action
or as a plea of objection (defense)(!)
KC 4: Choice of Court
Brussels I-bis Regulation
- Substantive: Art (1) – civil and commercial matters
o Not excluded (Art. 1(2)) including choice of court clauses
- Geographical scope
o Art. 4 – defendant domiciled in MS, exceptions arts. 24, 25, 18, and 21
o In choice of court matters: Art. 25 – regardless of domicile
o If the parties have chosen a court of a MS
- Temporal: Arts. 66 & 81 – proceedings after 10.01.2015
Hague Choice of Court Convention 2005
- Substantive: Art. 4(a) – “exclusive choice of court agreement”
o E.g., parties have stated that the Spanish court will have jurisdiction alongside
other courts which would have jurisdiction under the normal rules of PIL, it
would not be covered by the convention
- Geographical
o Art. 1(1) – international case
o Art. 3(a) – court chosen is from contracting state
Ratified: EU, Denmark, Montenegro, Singapore, Mexico
Implemented in these five jurisdictions
UK no longer falls within the EU – signed in their own right
Signed but not ratified: China, Ukraine, US, North Macedonia
- Temporal
o Art. 16 – choice of court must be after entry force for chosen state
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Concurrence
- If court chosen is an EU MS, there is concurrence between the two instruments
- Points to Brussels I-bis to regulate the validity of that choice of court clause
Choice of court – applicability
- Art. 25(1): neither party from EU but court(s) EU chosen
- Under previous Brussels I, one of the parties had to have their domicile in a MS
- Three different aspects:
o Formal validity: in what manner does the choice of court clause need to be
made
o Substantive validity: to which matters can the clause be made
o Effects of the choice: what happens once a choice of court clause has been
made
Formal validity
a) In writing or evidence in writing, or
o Art. 25(1)(a)
o MSG: oral contract with jurisdiction clause valid if one party did not react to
letter of confirmation or paid invoices without objection to a reference to the
competent court pre-printed on these invoices
b) In accordance with practice between parties, or
o T&Cs on the back of an invoice – not part of the contract
o However, if it is a practice between the parties, could still be regarded as a
valid choice of court clause
c) In accordance with international trade or commerce use
o Transporti Castelletti: usage not necessary that it exists in all EU-states and a
form of publicity is not always required
Substantive validity
- In connection with a particular legal relationship (para 1)
o Powell v Duffryn: relationship between a company and its shareholders as
such is sufficiently particular
- Connection between court and parties/case not required (Castelletti)
- May not set aside Art. 24 (exclusive jurisdiction) or conflict with Art. 15, 19, and 23
(insurance, consumer, employment)
Effects of the choice
- Chosen court exclusive jurisdiction, unless non-exclusive jurisdiction clause (para 1)
- Lis pendens rules also apply in case of a jurisdiction clause (Gasser – court second
seized should stay proceedings even if it is chosen court!)
- However, now new rules in the context of Arts. 29 – 34
