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Conflict Lectures- l3, l4

Conflict Lectures- l3, l4

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Published by: Hürmüs Oltan on Nov 29, 2011
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2. Jurisdiction under Brussels I Council Regulation (EC) 44/2001.

Rules on jurisdiction relating to BRI BRI started life as the Brussels Convention The idea was to create a free market judicial sphere Convention – was a treaty between independent states although even then the ECJ had jurisdiction to hear claims under the Brussels Convention. The Regulation is an update of a Convention, although in most but not all respects it is the same Many of the cases concern the Brussels Convention, not the BRI Note this when reading the cases, the numbering is changed There are some states which are outside of the EU which are not covered by the BRI but which are covered by its convention equivalent – the Lugano convention o Iceland, Norway, Switzerland – in its terms Lugano almost identical to BRI o Not examined on Lugano Expected to know which ms EU are (duh!) The BC used to be an report attached to it which explained the various provisions, like running commentary on the Convention o Name of report??? The Schossler report (?<><><><><><><><>) – good, but no longer allowed to use it, sot the EU decided regulations of the EU do not come with reports, not possible to have experts explain the relevant provisions o Makes the status of the SR somewhat ambiguous in sense did have a report, which in some ways same, but no longer supposed to look at it – but we still look at it – but technically at least SR does not have the legal force it once did when BC was in force BR itself is tf jurisdiction when ms Within this country – have different jurisdictions – E.g. England and Scotland – could have disputes – but those issues not dealt with regs EU, have our own, internal rules on this, so not in BRI But BR itself allocates jurisdiction as btn mss – UK is an ms



(1) Autonomous meanings *C-26/91 Handte [1992] ECR I-3967 (2) The primacy of domiciliary jurisdiction and restrictive exceptions to Articl 2 C-220/88 Dumez France [1990] ECR I-49 (3) Concern to avoid irreconcilable judgments 144/86 Gubisch [1987] ECR 4861 (4) The need to promote legal certainty Canada Trust Co v Stolzenberg (No 2) [2002] 1 AC 1

Characterisation under BRI - Will think of characterisation in detail later on in the lectures - But know now the approach to characterisation under BRI - Eg BR has special rules applicable to contract - So one of questions have to be able to answer is –what is a matter relating to a contract - Raises a classic problem within the CoL – means what the English mean by contract is not the same what the French or German mean by contract, different jurisdiction give this legal term different meanings o (keys to A – bailment) o In G law, contracts include gifts, gifts are contractual. - So note have court case, q what each jurisdiction considers to be contractual is different - Dispute is whether English or German courts have jurisdiction, do they adopt a Eng, German, or 3rd and independent meaning characterisation of contract? o Under BRI – the answer is the 3rd –do not adopt of any one jurisdiction – approach to interpreting said to be “teleological” interpretation o Means a purposive interpretation – see the purpose of the regulation and adopt an autonomous meaning o Not absolutely every term is given an independent teleological reading, but most do. - That approach has an upside and a downside - Upside – leads to consistency of approach across EU, all to adopt same meaning acc to BRI, even if different for what would employ within own legal system, so we have coherence within the system. - Downside – is that simply to not have without more an autonomous meaning of words like “contract”, no international usage which everyone takes, no European sense of contract can appeal to, and v attractive to say adopt teleological, but will see in text v difficult to see the purpose, is a gift to be construed as contract in light of the


regulation Which means that if there are to get answers ultimately will have to ask the ECJ o Means expenses, delay On the other hand, have had the BRI/BC since 1968 – so have considerable guidance as to what these terms mean, so problems no longer nearly as acute as were at time of intro of Convention. The BR is in various different languages, each said to be equally valid, some minor differences but valid Also, although SR gone, do have something new since which is a preamble at the front – not v that helpful really When look at other regulations will see preamble more important, e.g. Rome II Are the proceedings within the domain of the Regulation? Article 1



C-412/98 Groupe Josi [2000] ECR I-5925 (jurisdictional rules may be relied on by claimants, whoever they are and wherever they come from, i.e. from outside the Member States) *C-814/79 Rüffer [1980] ECR 3807 (action by council to recover cost of removing barge not civil/commercial, even though claim framed as a tort action) *C-190/89 Marc Rich [1991] ECR I-3855 (exclusion of arbitration includes cases where existence of arbitration agreement is in dispute) *C-391/95 Van Uden [1998] ECR I-7091 (dispute agreed to be arbitrated is civil or commercial, and not excluded, even though no court has jurisdiction over it) *C-185/07 Allianz [2009] ECR I-(Feb 10) (exent and consequences of the exclusion of arbitration from the material scope of the Regulation: no injunction to protect arbitration agreement). *West Tankers v RAS (The ‘Front Comor’) [2007] UKHL 4, [2007] 1 Lloyd’s Rep 391

Article I BRI - Read

o 1. This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters.
What about claims against public bodies then? Do they fall within or outside of the regulation?

proceedings relating to the winding-up of insolvent companies or other legal persons. so perfectly possible for BRI to apply to public bodies only if the obligation relied upon is peculiarly public will the BRI NOT apply. In case said that an attempt to do this (injunction) is flatly inconsistent with purpose of BRI. wills and succession. There actually are separate regs in terms of family law matters but not covered on those course o (b) bankruptcy. rights in property arising out of a matrimonial relationship. it’s a public law claim for public expense being recovered by public body. But notice Allianz [2009] case – one of issues arose was whether or not an English injunction to protect English arbitration proceedings will stop proceedings coming up fell foul of BRI And an argument to say possible was the exclusion of arbitration from scope of art 1. General Provisions . not civil/comm. Example of autonomous meaning: Case – Rüffer [1980] o Council. not by nature of the claimant or D. Falls outside BRI o But note fact would characterise as public not determinative o Admin matters outside too Some specific exclusions in 1. trying to remove a barge o Tort claim o ECJ says no tort claim.2(b) is in Allianz. These bankruptcy proceedings outside too. separate regulations for this.2: - o (a) the status or legal capacity of natural persons. and again. judicial arrangements.- - Whether or not something civil and commercial is determined by the nature of the claim. held by ECJ that that isn’t what the effect of 1. not covered here o o - (c) social security. compositions and analogous proceedings. (d) arbitration.

each MS applies its OWN rules to work out whether an individual domiciled there.2 . in part art 2.The general provision is art 2. the court shall apply the law of that Member State. persons domiciled in a Member State shall. starting point for rules on jurisdiction. o So rule based upon domicile.  o SO despite what generally thought BRI adopting autonomous meanings. Be resident here  2. SI 2001/3929. with consequence possible incoherence o Domiciled in England when Civil Jurisdiction and Judgements Order 2001.But that is confusing. then.Note that Briggs when he writes about BRI reorders all of the regulation numbers. Residence indicates a substantial connection with the UK – when have a substantial connection? Presume have if have been resident here for 3 months or more –  So usual position – will presume domicile for being resident here 3+ months o What if work out not domiciled in Eng?  59.  2 conditions:  1. If a party is not domiciled in the Member State whose courts are seised of the matter. gives them logical priority. In order to determine whether a party is domiciled in the Member State whose courts are seised of a matter.1 - Article 2 o 1. D to be sued in ms where he is domiciled o Q then arises – what constitutes place of your domicile – o To answer that distinction natural persons and corporations o Contained in article 59 1.(2) para 9 Is the defendant domiciled in the United Kingdom? Article 2 Civil Jurisdiction and Judgments Order 2001. the court shall apply its internal law. be sued in the courts of that Member State. Subject to this Regulation. whatever their nationality. in order to determine whether the party is domiciled in another Member State. Article 2 . better to stick with order regulation uses . Sch 1.2. . here NOT given autonomous meaning. so certain provisions which are mandatory .

and if not that place of formation of company. where there is no such office anywhere. doesn’t say anything about any other country  Theoretical problem – is that could have a gap. or  (c) principal place of business. Fr more in France – but much less of a problem –  Much bigger theoretical problem if cannot be sued anywhere  Probably case – could happen o Companies – different because here laws more harmonised o Can find rules in art 60 BRI  For the purposes of this Regulation. the place under the law of which the formation took place o But some because no registered office. the place of incorporation or.  3. but under rules every single ms not domicile there. a company or other legal person or association of natural or legal persons is domiciled at the place where it has its:   (a) statutory seat. and that gives the statutory seat o More difficult for our purposes. or (b) central administration. the court shall apply its rules of private international law. For the purposes of the United Kingdom and Ireland "statutory seat" means the registered office or. could say clearly EU. which means cannot be sued in any ms under art 2 – never happened but theoretically could be problem  What have is uncertainty in situation  If someone domiciled in more than 1 place – eng rules say in Eng. so if no such place. where no place of incorporation. . where there is no such place anywhere. is art 60(3). only use CJJO to work out if someone is domiciled in ENGLAND. In order to determine whether a trust is domiciled in the Member State whose courts are seised of the matter. o And it is only one of those that need to be satisfied o Which might lead us to conclude that an individual having one than more domicile can be solved in same way o The phrase “statutory seat” no real meaning in Eng so given definition in BRI  2.o So look to French law if think someone domiciled France. so someone could be resident nowhere. to understand.

1. can’t go looking at them Article 4: o 1. sue trustee. trusts don’t have legal personality so this sub article is a v peculiar provision. not the trust. but then many exceptions to that So one of questions could have in an essay – is do the exceptions follow the rule – so if exceptions so much devoid BR of meaning NOTE that fact D not domiciled D not in EU domiciled does not rule out BR being applied Say if have Italian court judgment continues in BRI and will continue to apply Same with LAP rules – so D’s domicile relevant in terms of jurisdiction but not to other BRI rules - Arts 3 + 4 . If the defendant is not domiciled in a Member State.Article 3 o 3. And in a sense if thinking of it as flow chart this should always be first point in problem question – if not. excluded by art 3. starting point will always be domicile. be determined by the law of that Member State Notice again ONLY for rules of jurisdiction. it is contemplating a trust being sued – here no legal personality o In US trusts do sometimes have legal personality o But here trusts obviously no legal personality o But BRI is assuming the contrary in 60(3) Art 2 is just the starting point – so whenever answer a problem question. not with recognition or enforcement or LAP Exceptions to Article 2 .Reason must be same sort of reasons with English forum conveniens rules . the jurisdiction of the courts of each Member State shall. o If are an English common lawyer. fall into traditional common law rules If IS domiciled. is that true o If trustee runs away with money.o SO who is art 60(3) contemplating can be sued – a trust can be sued – assuming can sue a TRUST – a trust has legal personality o As matter of domestic common law. Persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the rules set out in Sections 2 to 7 of this Chapter Means old common law rules gone. subject to Articles 22 and 23. starting point.

Spiliada or BRI – comparative law exercise. claim by sub-buyer against manufacturer may not be within the article) *C-334/00 Tacconi [2002] ECR I-7357 (damages for failure to negotiate a contract in good faith not within article 5. they are not open invitations to courts to engage in some balancing exercise in way would be approached in Spiliada And one of Q think – which approach prefer.1: special jurisdiction over matters relating to a contract *C-26/91 Jakob Handte [1992] ECR I-3967 (no ‘obligation freely entered into with regard to another’ means not contractual.- - Where justice would be better served by being served in another ms A Circumstances when another ms far more connection to dispute an inappropriate to look at court of D’s domicile to take jurisdiction But notice that the BRI is not setting down flexible discretionary rules in same way Eng rules in Spililada are flexible. does the English court have special jurisdiction? Articles 5 and 6 (a) Article 5.1) 266/85 Shenavai [1987] ECR 239 (if there is more than one such obligation the accessory obligation may follow the principal one) 12/76 Tessili [1976] ECR 1473 (place of performance is determined by national court reading the contract and applying its own (choice of) law to it.) *C-288/92 Custom Made Commercial [1994] ECR I-2913 (confirms Tessili. o Within this country we have completely different approaches to jurisdiction depending or not whether d domiciled o But obvious question which approach to be preferred (3) Is the defendant domiciled in another Member State (article 59 (52 BC))? If so. and denies separate relevance of forum conveniens) C-440/97 Groupe Concorde [1999] ECR I-6307 (Tessili is still correct) C-386/05 Color Drack [2007] ECR I-3699 (multiple places of delivery within the one Member State gives jurisdiction to local court at the place of ‘principal’ delivery) Boss Group Ltd v Boss France SA [1996] 4 All ER 970 *Kleinwort Benson v Glasgow City Council [1999] 1 AC 153 *Agnew v Länsförsäkringsbolagens AB [2001] 1 AC 223 . these are rules.

can construe such claim as contractual. there are alternatives. in another Member State.Handte [1992] o Have cases where domestic law courts have seen as contractual but ECJ has said no. in the courts for the place of performance of the obligation in question. and then the sub-buyer is injured by the product  And wishes to bring claim not against firm that sold him the goods but manufacturer  If are English – how would characterise that claim? • Tort – Donoghue v Stevenson case  But French said no. What does “place of performance of the obligation in question” mean? - Matters relating to a contract o Here no doubt at all that the approach is to adopt an autonomous meaning in way explained earlier o Authority . who then sells them on again to a sub-buyer. don’t say the only court can take jurisdiction is governed by 5(1)(a). not contractual claim.Article 5 o A person domiciled in a Member State may. be sued: o 1. giving claimants an additional option 2 questions of interpretation arise in relation to this provisions: 1. not extra contractual liability tort – said allowed to sue upon the contract – prepare to interpret this to exception to privity of contract  This view is not generally accepted.domestic law courts  French case –  Have a contractual chain where goods are manufactured. not even in French law  But can see that if live in jurisdiction which v broad exception privity. and vice versa o Handte – first example of it. no prior dealings. So have a special rule laid out in relation to contracts. (a) in matters relating to a contract. then sold on to a buyer. bc any obligation to sub buyer not obligation freely entered into. not contractual dispute – so not contract. not in 5(1) . What does “matters relating to a contract” mean? 2. cf a jurisdiction more like Eng would not be prepared to see as contractual  But ECJ says doesn’t care. expanding the options of the contacts.

Dutch saw this as under claim of associations  ECJ said don’t care.Dutch decision  Under Dutch law. it is Do have some guidance as to what ‘matters relating to a contract’ is But more is what we as English lawyers One of the unresolved questions/issues is how do we deal with those voluntarily assumed obligations which English law recognised but does not characterise as contractual Q – are some of the things which we have been characterising as a contract law really within contract as for the purposes in BR o Why isn’t giving something to someone to hold a contract under English law – assume – because no consideration o If pay. what would say would be characterised as contractual by ECJ. it is contractual o Possible to have contractual bailments o But that was a non contractual bailment o But no consideration o How common through the EU is the doctrine of consideration?  The Irish have it too – but no one else o So if were a betting man. – Peters – [] .o Another e. but claim fails because of this . not such thing – bc duty in cases like HB v H – a promissory duty. have members of an association where one member of the association trying to form claim upn other members of association upon club’s rules  If were English – would we say claim is based upon – contract claim  That is what ECJ said in Peters too – said voluntarily entered relation btn parties  Under Dutch law not contractual. like HEDLEY BYNRNE v H – voluntarily assumed duty like a contractual. fact law in the Netherlands said non contractual. bc no consideration concerns o Only UK and Irish o And then once say that other things don’t think as contractual and only not contractual bc consideration o Another example – o A promise – gratuitous promises usually would go to into tort of negligence – a lot chucked into liability for negligence o RS – thinks tort of negligence does not make sense. voluntarily assumed – v different from duty all under not to negligently injure A – o But then diff rights only good for those under promises.g. irrelevant. but only reason not contractual bc no consideration o A proof of that is the result of Hedley Byrne – D wins bc of the disclaimer – letter giving the advice – big disclaimer – so HL saying claim would have worked if no disclaimer.

not really tort claims under regulations. no assumpsit here.o Say driving in car – speakers – no liability accepted – but run into him negligently – is the disclaimer going to be effective – no o Cant just disclaim duties owe to B o Cant get out of the right by disclaiming it o Can the duty bearer disclaim the duty – NO o So why in HB disclaimer work? Bc disclaimer prevented laibility when know in Tort this doesn’t work generally – so why could disclaim it in HB – arose from the promise – the only possible source was that a promise or an undertaking was being made. or an assumption of responsibility and need this to get claim off the ground – and disclaimer made it clear no AoR – and that is why the claim fails – quite different from the claim in DvS – no AoR – just general right against everyone not to injure everyone o But point in HB is that not concerned with that but voluntarily assumed duty and not applied bc of the disclaimer o Why lose sight of this in English law? A reason of history – claims like HB – are what used to be claims in assumpsit – a voluntarily assumed duty case o Not what is going on in DvS. just straightforward action on the case o And historically characterise these as separate sorts of cases o But 19th c tightly defined law of contract – and some things got pushed out of contract into tort – got pushed into another body of law when really about an assumed duty – o But HB an isolated case o With bailment the same o Only reason not calling it contractual bc of consideration o If A faints in the lecture – no duty to help him o If A faints in a public hospital – then assumption of responsibility – expect treatment o Duties of hospitals – again one of the assumpsit duties – and can show in that were in a different position – bc then responsibility o In England – is this contractual – bc consideration is missing again – only reason not seeing it as contractual – but again duty of a hospital is a voluntarily assumed duty o So category of positive duties which are assumed duties which could be construed as contractual is quite broad Other . contract actions really should be under 5(1) - .not because forgot history – but the tort of negligence Go general view is that there is a tort of negligence which covers everything – RS thinks nonsense But now ppl speak in terms of tort of negligence In Private International Law can escape that – how the ECJ is going to see them – would not see them as tortious – would say only reason not calling it contractual bc of rules on consideration – but only UK and Ireland have this.

o Can get money back? Yes o What is the anteur (?______________) of claim have o Is it contractual? Any promise. to achieve results. doesn’t say anything • All quasi tells you is that it isn’t anything. B says no o Court to try to recover money. contrib. agreement? – not even a promise o Is there a tort. negligence. – money paid by mistake o Then demand money back. e. no contract. breach of a duty? No o But can still get the money back o 40 years ago could say claim in quasi-contract o Justinian would have said dealings in contract not just ex contractum and ex delicto – he said also quasi ex contractum and quasi ex delicto – “as if” upon a contract o The addition of those words actually makes it clear it is not a contract. And ex delicti (tort) o BUT even then clear not end of story o Bc other e. and not absolute duties like contract. the defences are different. o Trouble with phrases is that:  It gets bodelrised (?____________) into English – think it is a bit like contract  And not telling why liability is being imposed at all. no. not contract or tort o (Why isn’t ue treated as gift? Bc -The mistake makes all the difference – so in jargon.- ((Doesn’t this mean the doctrine of consideration makes no sense)) ((And think – cannot ever claim specific performance.g. something else o Traditionally contract books used to have quasi contract sections o Modern lawyers not prepared to say that. so for those reasons there vol assumed duties are fully contractual – btu not deicive for PriL cases)) Next set of cases The 2nd c roman jurist Gaius – divided civil claims into too – ex contr. would say different principle underlying this. claim in unjust enrichment. there is an unjust factor. would say based unjust enrichment.g. in absence of this – no explanation simply for - . obligated to make restitution. was there any intention to make a gift. And there are all sorts of other reasons – gun at the head – would be duress – or undue influence – would have to look at positive reasons – if you are a civilian – answer rather different – what looking is not a positive reason but the absence of a legal ground – if pay money for mistake – in English law would say mistake grants recovery – a German lawyer – would say no basis for the transfer.. no court order.

would be better – a teleological interpretation mandated as conceptual o Kleinwort Benson v Glasgow City Council [1999] 1 AC 153  Case which was one of many swap cases which came before HL  Had a set of rules imposed by M Thatcher. But there are more borderline cases – 2 cases = 2 HL decisions  *Kleinwort Benson v Glasgow City Council [1999] 1 AC 153  *Agnew v Länsförsäkringsbolagens AB [2001] 1 AC 223 o The cases are reconcilable but approaches quite different o Because – conceptually. In order to get money could then spend on council things  So entered into transactions under advice were valid  But HL said no. not contract actions. not con claim in contract o But may be for certain purposes. trying to get money back from them  Prima facie result would be Scottish council domiciled in Scotland. all these contracts are just disguised loans and they are void bc councils had no capacity to enter into these  Concluded LA/s lacked authority to enter into these. these (mostly Labour) councils came up with council rate swaps with commercial effect of being loans. had been borrowing loads of money  Conservatives tried to stop that  In order to escape these caps. Has English law moved to that position now – 2 different ways but on neither conception seen as a contract issue) Is that a matter relating to contract. the people who are losing are trying to claw back money from the counter-party. mistaken transfer? We would say. get the money back  So in case – Glasgow CC. so under art 2 – the Scottish courts would have jurisdiction.o o o o the transfer – so not looking for a positive reason for recovery but absence. no it isn’t. wanted to cap money used by councils. for Private International Law cases might want to take them as contractual for the purposes of reg. and as a result all entered into VOID  SO. not eng  So KB tried to force their claim into what is now art 5(1) – tried to say D might be domiciled in Scotland but still have jurisdiction bc matter rel to a contract and place of performance is England bc that is where payments were .

even though discharged – shows right to get money back show not based upon contract itself  Would be v inconvenient if that claim was not treated as matter related to a contract – would b v inconvenient if only damages and specific performance – will ALSO include claims to get back money – so that is at the other extreme from KB o In the middle . claim in unjust enrichment. There are some cases where courts where the D is domicile – where have exclusive jurisdiction – but not what concerned with at the moment – concerned with those that are in addition to domicile Last week talked about what matters related to a contract meant And then finally discussed claims for restitution - . which means would be left unjustly enriched if don’t get money back  If say reason don’t do teaching drops down dead – contract here is discharged. Is it technically breach of contract if don’t give money – haven’t done. but turns out get 1st anyway.made  (Could say ECJ no jurisdiction) – finished in HL bc this is an internal UK matter –  The HL adopted a conceptual approach – which is to say these contracts are legally a nullity bc Glasgow CC is acting UV  Claim here is to reclaim back money paid. Breach of contract. • Could say give back the money. frustrated – can you get money back? Yes. and then do not do it.Agnew . not a contractual matter at all. contract is a nullity in which case falls foul of art 5(1)  This is the high watermark of the conceptual analysis  On other extreme cases where would be inappropriate to have this analysis  Say A wants private tuition form B – pay upfront.attempt to rescind the contract for nondisclosure – not claim based upon a contract – what trying to do is set aside a contract – so question – is that a matter relating to a contract of should we say it falls outside? o Agnew – characterised it as a matter related to contract – which is a much more contextual approach to reading of Art 5(1) 02/11/10 Recap Exceptions in Regulations start in art 5 – if special jurisdiction – special jurisdiction in addition to D’s domicile.

2 qs: o Can you seek a negative declaration? Are they possible or not? Yes. if the painter dies). it would be v inconvenient if we didn’t group together – scope of one will determine the scope of the other – joined at the hip. Don’t any more Clear that sort of case is outside of scope of 5. they are possible – people might have perfectly sound commercial reasons – want to do future planning. money goes back o Shows the obligation to return the money isn’t restitutional o Money paid on condition the work is done. or agreement not reached… so seeking a declaration . falls outside 5. not same cause of action tech but is o Still matter relating to the contract o Easy cases at 2 extremes – no contract at all. 5. But what about a claim for a declaration that a contract is a nullity – if claim being sought by the claimant is of a negative kind? Wants to argue there is no contract? BC might say void for public policy. but not a contractual right o What would probably be if we say that claim. o Specific performance? No. even on this view – And that got debased in its English translated in category quasi – contract – used to have these sort of categories/chapters.1 – not intended to cover obligations which arise outside of the context of a contract On the other hand there are what might call restitutionary obligations which arise in the context of contracts but which aren’t technically speaking contractual obligations Example of someone who has been paid money in advance for the provision of a service Eg if pay to paint house – What relief can you seek against the person – breach of contract – damages. will not get – cannot be compelled – would be slavery Another remedy might seek – might ask for the money back o That claim – is that a right arising b/c of agreement? A contractual right? o Contract frustrated (say. not really based upon contract.1. no contract o Money – make restitution. restitution.- - Matters relating to restitution Some easy cases Gaius – Justinian Digest 6AD – quasi-contractual obligations – but words as if give game away.1. textbooks.1? or isn’t there a problem? Is this claim for restitution related to the contract? It is. outside 5. arising from contract. o Other extreme – there is a contract. know what risks can legitimately run with your assets – if have multi-billion - .

1.1. had been declared unlawful by UK legislation so decision Hazel v Hammersmith – But millions of pounds had been paid out under these deals Turned out nullity So losing party sought restitution.1.1. – seems sensible – clearly the existence of a contract is a matter rel to a contract NextWhat if no doubt the contract between the parties is a nullity? No agreement at all form word go. – and answer was yes it is – Now contracts may be voidable for no of reasons – if hold gun at head .1.1 – still matters relating to a contract Benson – question – is that within 5.. falling outside 5.- claim – constrained. claim for restitution in context contract is a nullity should also be within – argument by bank – HL rejected – said this was an unjust enrichment claim. but Italian torpedo So a claim that there is no contract – within art 5. from what did thinking the agreement was valid? In Kleinwort Benson v Glasgow City Council [1999] – borrowing. –q was w/er the benefit under a voidable contract was within art 5.1. Know that restitutionary claims arising in the context of a contract are within 5.contract voidable – make it voidable because you might still think it is a good deal – give person subject to the duress the option MR – option to rescind and avoid the contract MR Undue influence Here – Agnew concerned with a particular sort of agreement where a - - - . 2??? And want to claim 5. – Argue this case – know that a negative declaration is a nullity. so HAVE TO SUE IN SCOTLAND – BC that is where domicile CONTRAST Benson GCC against Agnew In Agnew – q not w/er benefit was within 5. can try and argue.1.1. recover back the money Is this a matter relating to a contract? Argument for saying it was would be to adopt a contextual approach – know after “B Finance” (_______________________???) case that seeking a nullity is within 5. And know certain rest claims arising linked to contract are within 5. want declaration of no liability o But problem – allows ppl to abuse the system using the Italian torpedo – but not the negative declaration’s fault. is within art 5.1.. but what are seeking is restitution. Put examples together. – D Glasgow CC – but bank – don’t want to sue in Scotland – want to sue in London – reason in background why wanted to sue here was thought at least possibility would be advantageous limitation period in England (6 cf 5 years) So trying to slot claim in …..

Second phrase need to interpret under 5. when B knows valueless old notes – B doesn’t have to tell – contract law allows to exploit the stupidity other people – take advantage of facts know even though they are making a mistake. avoid contract.So those 3 main – all 3 potentially the obligation in question – so q .Agnew (claim to rescind contract for non disclosure and claims to recover back payments made) – which is the obligation in question in Agnew –possibilities. unless making mistake as to the terms of the agreement – only then no agreement o But insurance contracts – exception to this – cannot exploit ignorance counterparty.1. matter rels to a contract not confined to claims of contract. have to tell them about relevant facts o So in Agnew – case where alleged that the Ds had failed to disclose all of the relevant material facts and as result ability to rescind the agreement and claw back any benefits received under agreement o Benson contract void form word go.g. can take that.. if lie insurance – duty to say terminal illness – disclose all that – o Bc the insured has an informational advantage over the insurer – better position to know about own health than the insurer is o But not true generally – generally not true in contract law – o E.1. but HL doesn’t matter..1. no capacity to enter o Agnew – held WIHTIN art 5.so narrower approach to what matters relating to contract means The Place of Performance of the Obligation in Question . – is “place of performance of the obligation in question” . if buy some oats from B. broader Some ppl view this as an unhappy distinction – Is the distinction Benson and Agnew too thin? Perhaps qualitative difference btn contracts which know are void and voidable But in B Finance (__________________?) said that to said void was within 5.duty of disclosure arises o Contract of insurance – contracts usually thought of as contracts of ultimate good faith – insured duty to tell other side of all facts commercially relevant to entering contract o E.. and A thinks they are valuable old oats. = claim to avoid a contract and recover – within 5.. for purposes of this provision: o Obligation to make disclosure – obligation to speak up n say are ill – the pre-contractual obligations o Obligation performed – to pay out o D now under a duty to make restitution of the money paid – .g.1 o But again – a contractual action in te true or narrow sense o Basis of claim again unjust enrichment.

B . under the contract. a franchise?? Would it be in Words “unless otherwise agreed” – doesn’t related on where performance rendered but what the obligation in q is – the obligation to pay for the services or the goods – so reverse 5. the goods were delivered or should have been delivered. these aren’t actually duties at all – things done wrong in formation of contract – not actually duties in the formal sense – but the HL chose that to be the obligation in question Outside of the context of rescission – the obligation in question – the starting point is now 5.1.1. bc deliverance in France will not be performance of the contract – wont count as performance at all – in that situation – only court with jurisdiction – where SHOULD have been delivered) But 5.1. So q how apply that to other cases of rescission – They seem to be focusing on these pre-contractual obligations being obligation in question So how apply to e.in the case of the provision of services.1.in the case of the sale of goods. not to apply duress – think where breached o Technicallllly. interest rates will not be seen like this.will cover a large no of situations – but not all can imagine – e. the place in a Member State where.g. under the contract.g.b? When talk about obligation in question talk about primary contractual obligation. Draftsmen seem to have in mind case where goods no good or not delivered – o (But imagine case delivered in France though should have been in England – but answer will be probably no. the place in a Member State where.b – allows them to choose obligation in q was a diff obligation What if are outside of 5. MR – relevant obligation – duty not to MR. the place of performance of the obligation in question shall be: o . o .1(B) – which gives us some definitions of place of performance of obligation in q : - o (b) for the purpose of this provision and unless otherwise agreed. … Not sure what other contracts are within service – e.- where to be performed And no obvious answer to which of those 3 options is the right one HL goes for first – obligation in question obligation to make disclosure – therefore in 5. the services were provided or should have been provided.g. not the secondary obligation to pay damages!! – NOT THE SAME OBLIGATION – arises from it – but not the primary obligation But under regulation – look at obligation to perform not to pay damages - - .

is what counts) *C-68/93 Shevill [1995] ECR I-415 (defamation.3) *21/76 Bier [1976] ECR 1735 (harmful event is where damage occurs or where event giving rise to it took place) *C-220/88 Dumez France [1990] ECR I-49 (damage done to the immediate victim.2.1) *C-334/00 Tacconi [2002] ECR I-7357 (damages for failure to negotiate a contract in good faith within article 5.- .3: special jurisdiction over matters relating to a tort/delict/quasi-delict *189/87 Kalfelis [1988] ECR 5565 (covers all actions seeking to establish the liability of a defendant which are not ‘matters relating to a contract’ within article 5. or direct and not more remote loss. ECJ deferring where to determine - 5. where the harmful events of publication occurs in more countries than one) *C-364/93 Marinari [1995] ECR I-2719 (place where consequential financial loss is suffered by reason of acts occurring elsewhere does not have jurisdiction) *Domicrest Ltd v Swiss Bank Corp [1999] QB 548 . skipping over (b) Article 5. and where many principal of the obligations Where is the place of performance of this obligation Here come to something which is not given an autonomous meaning – free of any applicable law – not true of place of performance – pp place of obligation in question – if English law look at eng law to look at where the obligation is to be performed… and the authority for this is Tessili – a rather unusual position. Where there is multiple obligations which could be relied upon in contract – looking at place of performance of principal obligation – not necessarily always readily determinable… Generally speaking talking about the obligation being relied upon by the claimant Leading case .Tessili [1976] o Looking at primary.

. delict or quasi-delict.1.3 – Tort: o 3. narrowly. but saying all claims liability for loss fall under 5.3.3.other argument – now have Rome II Regulation have to fit all claims within 5.3. Briggs.g Briggs) rely on Kalfelis – if not within 5.1 will 5.3.1. If trying to bring claim or restitution. no special rules restitution So some people (e. and 5. will be 5. in matters relating to tort.3. – but this would be to give 5. or occupier of land For our purposes this label means instances of strict liability within the role of tort Kalfelis v Schroeder [1988] – READ! o Q w/e art1 5. which K said not broad Example of original judgment mistranslated Original judgment said where the claim is to establish liability for loss and is not within 5.1. 5.1.3 o So on its face.3. default rule!!! So not problem. just liability – reading in German clear And that is how can explain why courts were also saying had to adopt narrow reading Original saying not that if not 5.5. or 5. in orignial – translated as haftung.1.3 - - - . is that a claim for loss? Its based on the D’s GAIN – claim for GAIN. – so restitution will be 5. go back to art 2.3 should be read expansively. really So from Kalfelis – learn not all no fall 5.1. vicarious liability. an expansive reading. it is within 5. Rome II – covers ALL claims for liability which are not contractual! – He thinks that means should read the jurisdiction rules similarly – don’t see logic in that at all!! – means need to read special jurisdiction rules in RII. not logically necessary… bc there aren’t any gaps – if not 5. in the courts for the place where the harmful event occurred or may occur. not loss Schadenshaftung – liability for loss. Matters relating to tort – at best bad style… A quasi-delict – in Roman law – what we see as examples o strict liability – Rylands v Fletcher – or an employers liability. it is within art 5. not deprived of all meaning o But also said where a claim is to establish liability and it is not within art 5. it seems if it is not a matter relating to a contract it is a matter rel to a tort o These two statements are wholly inconsistent – what is the explanation for this? o Notice whilst have special rules for matters relating to contract and tort.3. broadly – CA (?) said no o Art 2 default rule..3.

3. have this head of liability.3.3 Next difficult point under 5.3 mean – does it mean where injury occurs or where consequential loss is suffered Game given away by word “event”. the wrong. incur v high costs of care – all various case for damages familiar with when think personal injury Could say the injury. So LS seen outside liable Here ECJ said don’t care what gr cl say for domestic purpose on classification – autonomous meaning given within 5. this distinction – N interesting area where this has been applied – in relation to - - . in England. when as a matter of law they are not one and the same thing Say are on holiday in Dublin. when run over and legs broken The consequential harm. when talk prop damage – where goods are damaged. not where expenses happen – link Dumez France case RS thinks that is what 5. loss. cannot work.- Some wont be caught by any Can doubt whether or not that is a problem Equable wrongs do seem to be within art 5.3 is saying. occurred in Ireland. right violation. but that is what they are groping towards. not here when conseq loss suffered Other examples Say car driving was A’s car – car damaged in Ireland but cost of replacing it in England Again. Case Cassio (?) – English case Contract with trad rules – under which Traditional rules – eq rules haven’t been classified as tort but do so for purpose of regulation SOME decisions of ECJ: Tacconi [2002] – German law claim – culpa in contrahendo – fault in negotiation causes loss to other side. distinct injury and harm When look at cases – will see that not precisely the language being used. where iniuria injury happens – in this case Ireland. is that as usage – use injury and harm interchangeable. legs h Returning to England.3 is that the court which is given special jurisdiction is the court of the place where the harmful event occurred or may occur That language is at least an improvement on old Brussels Convention – now clear covers claims for an injunction – to prevent from occurring – hasn’t yet happened – which BC on wording didn’t cover Downside of the wording is the use of word “harm” This is a problem bc important if are a tort lawyer able to distinguish btn iniuria and damnum – injury and harm – problem. here is where consequence loss suffered So what does art 5. – and fits with Kalfelis – claim for loss which is non contractual and is put into 5. loss of amenity. when someone runs over. happening here. serious pain.

but only insofar copies there.. but claim based upon HB principle. notice that there is at least an argument should have been 5.3. G… where injury happening – and courts say each jurisdiction occur but only in relation to that bit of the injury o Shivell concerns libel – how far could you apply it.3. will have jurisdiction. bc damages reputation higher  Anti claimant in sense would have to go to each country… all jurisdiction – v unusual – bc ECJ usually keen to consolidate claims within same court o So eng courts did have jurisdiction only under that portion o Notice that this rule o But rule in S does fit with when talking about harmful event – right viol occurs where the publication occurs – reads the def statement – in B. other torts>>? o Libel tourism – could say there is an extent to which the language being employed is important in the sense that where have publications in Greek. said claim based on where acted upon what have been told negligently – that court jurisdiction under 5.- defamation: Shevill [1995] – o Publication of a French (?) magazine – with a low circulation in this country o Some but not much o And claimants want to claim in England rather than in places where the magazine is distributed the most o Claiming here bc will presume actionable injury – calling someone paedophile – but here can claim without consequential harm. .. violation rights reputation o Also advantageous bc don’t require proof of forcity (? ____________) – don’t have to prove elements of claim that what you said was untrue – can sue unless it is true o So advantageous rules for litigants o In this case – states – so long as is publication within a jurisdiction – competence to hear the claim but only in relation to the extent to which the wrong occurs here o If a pub takes place within ms. the likelihood of there being a great publication here – not v high – but if are – complication here – why not really a worry though for US. o But. Fr. damages will be relatively low o w/as if publication with v large readership. higher.. even though worry? Bc not ms. harm there o In this case only for pub in England – if relatively low circulation here. so just assumed - . Only Ds domiciled here within BRI If talking def outside EU – Spiliada – most approp forum Domicrest Ltd v Swiss Bank Corp [1999] o Arg for negligent mr/advice – court v similar approach to S above.

in the court seised of those proceedings. or by a written instrument. 189/87 Kalfelis [1988] ECR 5565 C-51/97 Réunion Européenne [1998] ECR I-6511 C-539/03 Roche Nederland [2006] ECR I-6535 C-98/06 Freeport [2007] ECR I-839 C-426/06 Laboratoires GlaxoSmithKline [2008] ECR I-3965 6. provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. as regards a dispute arising out of the operations of a branch.5 special rules in rel to agencies o 5. in the courts for the place where any one of them is domiciled. where he is one of a number of defendants.4 does mention claims for restitution – but VERY narrow: o 4.1…!!!! 5. but it may not be taken advantage of if the basis of jurisdiction over the first defendant is not taken under Article 2. . Special rules in relation to trust disputes: o 6. agency or other establishment is situated.. trustee or beneficiary of a trust created by the operation of a statute. to the extent that that court has jurisdiction under its own law to entertain civil proceedings.fell under 5.1: special jurisdiction over co-defendants This may be taken if one defendant is being sued where he is domiciled. as regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings. agency or other establishment.3 and work out where arises – but at least ARGUABLE that HB claims could fall under 5. in the courts for the place in which the branch. ARTICLE 6 Different sort of set of rules on jurisdiction Primarily concerns cases where multiple defendants: (c) Article 6. 5. in the courts of the Member State in which the trust is domiciled. o A person domiciled in a Member State may also be sued: o 1.1. or created orally and evidenced in writing. no matter what it is. as settlor.

1.<><><><>< o . under Art.. but multiple other Ds domiciled in other mss EU. and once again the D doesn’t have to be domiciled in eng/state where being sued! 6. . to bring in all these periferal parties unless one domiciled here *C-365/88 Hagen [1990] ECR I-1845 - 6.1 that D must be main D. and only reason might be suing would be to drag Eng D before the Eng courts – nothing preventing from acting in that manner Notice how this contrasts with Sheville – here trying to get all cases dealt together to avoid inconsistencies. may be employed to bring other domiciled other ms – but get at least one under that court Say English D domiciled here. Art 6. in the court seised of the original proceedings. joining the parties together (e) - Article 6. unless these were instituted solely with the object of removing him from the jurisdiction of the court which would be competent in his case.2.3 about counter claims: o 6. a counterclaim can be brought against him even though not domiciled in England.- - So. may be a main D. as a third party in an action on a warranty or guarantee or in any other third party proceedings.So if a German claimant brings a claim against a D domiciled in Eng.4 about buying actions in rem in matters rel to contract o M><><><><>< .could use the jurisdiction of eng domiciled D to bring in the others – provided claims against all so closely connected that need to do so to avoid irreconcilable judgments Notice no requirement under 6.Classical example ??? . Easiest case if suing someone on a guarantee – have D can sue on basis obligation.3 .2: special jurisdiction over third party claims Art 6. o 2. and can then bring in 3rd p d who has given guarantee of primary obligation Notice under this art – basis of jurisdiction under primary D doesn’t have to be his domicile – so cant use 6.1. the D must be domiciled within a ms to be caught But where is.

and the contract falls within the scope of such activities. without prejudice to Article 4 and point 5 of Article 5. the consumer. or (b) it is a contract for a loan repayable by instalments.- (4) NB ilis alibi pendens rule still applies even where the defendant is not domiciled in a member state *C-351/89 Overseas Union Insurance [1991] ECR I-3317. the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer's domicile or. . jurisdiction shall be determined by this Section. *C-464/01 Gruber [2005] ECR I-439 (contracts for mixed purposes not consumer contracts) Article 15 1. In matters relating to a contract concluded by a person. by any means. if: (a) it is a contract for the sale of goods on instalment credit terms. or for any other form of credit. or (c) in all other cases. NEXT SET OF RELEVANT ARTICLES: 15 ONWARDS – CONSUMER CONTRACTS (5) Do the consumer contract provisions apply? Articles 15-17 (13-15 BC) Rules simply there to protect consumer Similar rules to protect employees 18 onwards *C-269/95 Benincasa [1997] ECR I-3767 (a consumer contract is one made for the purpose of satisfying an individual's own needs in terms of private consumption). made to finance the sale of goods. for a purpose which can be regarded as being outside his trade or profession. directs such activities to that Member State or to several States including that Member State.

important. use of language – If website is in Greek – not directed at the UK. simply in fund tension o And in way that tension borne by saying “directed at” .1. narrow cat C – most interesting – potentially rise to debate – o The difficulty this provision gives rise to – most obvious in the days of the internet o This article was not initially intended to cover what now concerned over internet – bc at time of BC did not exist so now see how apply – words which need interpreting – “direct such activities to that ms” – what does that mean? o Most obvious example would be advertising in that ms – if had advert for the sale of e. that looks like case of someone directing activities on English market and there by fall within 15.g. using own laws o Those things.A – easy – hire purchase agreements. 15. promotion free market. Or Fr… and that is usually the answer given in continent o Problem – e. where ppl offering goods and services are happy to offer them to anybody within EU. and the eng consumer buys the vacuum on basis of advert. want to sue in own courts. o An inevitable tension here btn creating a single mkt and protecting consumers o If want to create a sm. a vacuum cleaner by a German manufacturer. then rules on consumer protection which mean the business can be sued in countries of which know nothing under laws cannot know is going to be something which will inhibit the devpt of sm o Cf if want to protect consumers.1.and virtually always will be accessible in English so using this as a test can be difficult o So an open question at what “directed at” means – but applies to trans carried over internet o Some websites – worried about being sucked into jurisdiction so restrict access to certain consumers – if worried about being sucked into art 15.g. is it enough that the MS from which consumer is domiciled allows access to this internet site – activities directed at us bc can access this company form here o And this is not implausible. many buy stuff from interest from iffy firms at low prices from outside the UK o Have they directed your activities at you??? Ambiguous… some lit thinks draw line btn passive and an active website – how und this distinction? Ways in which could test w/er directed at part jurisdiction . or G.e.1.g. – can translate into English .c – o But what if it is simply a website a consumer has accessed from own MS – and has then purchased goods of service from that foreign D. mainly B – also self explanatory. not all will fall before 15 15. the narrow range of consumer contracts which is cover.- Notice.

3 only really significant one: o .2. V narrow exception – can see sit where all virtually resident in Germany – where allowing parties where allow jurisdiction .2 says can change this by agreement – if allow to sue in more jurisdiction can do that but not something will prejudice consumer but counter party o 17. Will not recognise f judgment if conflict Will usually recognised but not if taken jurisdiction in contrast with rules protecting consumers Notice 15. o 17 – concerns the ability to depart form this by way of agreement – to what extent can get out of it by agreement o o Can do so where agreement other than under s 14 arises where arisen If dispute German and Eng.Notice art 35 – to do with recognition and enforcement . if consumer contract under art 15: o ><><><> But counter provision not true. 4 or 6 of Chapter II.3 – special rules on transport: o <><><><>< Art 16 is the substantive rules allowing the consumer the choice. or in a case provided for in Article 72.ART 20(5)- ..notice rule son recognition DO NOT APPLY TO EMPLOYMENT CONTRACT . Do the employment contract provisions apply? Articles 18-21 - (6) . a judgment shall not be recognised if it conflicts with Sections 3. can agree to have courts of Luxembourg decide 17. that counterparts got to sue consumer where domiciled – see 16..

1: dispute about business goodwill covenant in lease not within article) *C-294/92 Webb [1994] ECR I-1717 (22. validity must be determined in the state where granted) (8) Is there an agreement upon choice of court.. in the form specified. e/yes less protection than consumers *C-125/92 Mulox IBC [1993] ECR I-4075 (place where work is done may be the place which is the centre of the employee’s cross-border operations) *C-37/00 Weber [2002] ECR I-2013 (employment carried out in several states. for the courts of a Member State? Article 23 (17 BC) *C-214/89 Powell Duffryn [1992] ECR I-1745 (clause in articles of association binds shareholder who had means of knowledge thereof whether or not he actually knew of or agreed to it) *C-269/95 Benincasa [1997] ECR I-3767 (chosen court has exclusive jurisdiction even over an action for a declaration that contract was void) *C-116/02 Erich Gasser GmbH [2003] ECR I-14693 (nominated court.4: where validity of patent raised as defence to infringement claim. . Agreements on Jurisdiction and Choice of Law: Chapter 7.if are violated. court not do what supposed to. regardless of domicile’? Article 22 (16 BC) *73/77 Sanders [1979] ECR 2328 (22. will not have jurisdiction until first court rules that it does not) Briggs. if seised second. not quite fitting the Mulox pattern (7) Does a Member State have ‘exclusive jurisdiction.1: action for declaration that land held on resulting trust and order for conveyance of legal title not within article) *C-4/03 GAT [2006] ECR I-650 (22. will not deny recognition.

may it decline to exercise it? *C-365/88 Hagen [1990] ECR I-1845 (joinder of third party may be denied on ground that it would be inconvenient to admit claim against him) *C-281/02 Owusu [2005] ECR I-1383 (no power to stay in favour of natural forum in non-member state) .(9) Will the defendant enter an appearance? Article 24 (18 BC) *27/81 Rohr [1981] ECR 2431 (appearance to contest the jurisdiction at the first opportunity not submission) (10) Were identical or related proceedings commenced earlier in another Member State? Articles 27 .30 (21-23 BC) *144/86 Gubisch [1987] ECR 4861 (if claims may produce irreconcilable verdicts. the causes of action are the same and court seised second has no jurisdiction after all) *C-116/02 Erich Gasser GmbH [2003] ECR I-14693 (it is irrelevant that court seised second was nominated by agreement valid under article 23) *C-159/02 Turner [2004] ECR I-3565 (it is forbidden to impede the first court from hearing the case by anti-suit injunction) C-185/07 Allianz [2009] ECR I-(Feb 10) (and the same rule applies even if the court is dealing with a matter excluded from the material scope of the Regulation) *Dresser UK Ltd v Falcongate Freight Management Ltd [1992] QB 502 (11) If the English court has jurisdiction.

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