PRIVATE INTERNATIONAL LAW - JURISDICTION

Author(s): Pippa Rogerson

Source: The Cambridge Law Journal , November 2010, Vol. 69, No. 3 (November 2010),
pp. 452-455
Published by: Cambridge University Press on behalf of Editorial Committee of the
Cambridge Law Journal

Stable URL: https://www.jstor.org/stable/40962706

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452 The Cambridge Law Journal [20 1 0]

Cromwell J. himself repeatedly emphasised that "the f

undertaking may be implied in the particular circumst
parties' relationship" (at [79]; see also [66], [71], [75] and [7
siderations that inform the implication of terms in this cont
similar to those that are relevant when deciding whethe
a reasonable or legitimate expectation that fiduciary duti
would be complied with. But a lack of substantive differe
the two approaches does not mean that Cromwell J.'s u
criterion is of no use. To the contrary, it usefully focuses a
what the fiduciary has done to justify the expectation
comply with duties of loyalty, thereby giving some structu
dence that ought to be considered when determining whe
pectation of loyalty is appropriate in all the circumstances o

Matthew Conaglen

PRIVATE INTERNATIONAL LAW - JURISDICTION

The landscape of Article 5(1) of the Brussels I Regulation conc

the allocation of jurisdiction within the EU has fundame
changed. In a matter relating to a contract the courts of "the
performance of the obligation in question" can take jurisdicti
original wording of Article 5 of the Brussels Convention led
number of cases which sought to identify the obligation in q
and its place of performance. The English courts were parti
adept in locating the obligation in question in England in or
obtain jurisdiction. A more strict rule was subsequently inser
Article 5(l)(b). The first indent gives the courts of the place of de
in a sale of goods contract jurisdiction. In a contract for the p
of services the second indent similarly gives jurisdiction to the c
the place where the services were provided. In Peter Rehder v. Ai
Corporation (Case C-204/08 [2009] E.C.R. 1-6073) the Court of
of the EU emphasized that both indents of Article 5(1 )(b) are
interpreted similarly. Whatever the issue, from non-delivery
payment via breach of warranty and whether the claim is in dam
for a negative declaration, all matters are referred to the courts
place of delivery or provision of services. In Color Drack Gm
Lexx International Vertriebs GmbH (Case C-386/05 [2007]
1-3699) the Court of Justice held that this place is an auton
linking factor providing a close link to the contract. It is referab
ther to national law nor conflict of laws rules. One justification i
those courts are particularly well placed to determine any claim a
out of the contract. Alternatively, the rule is certain and pred

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 C.L.J. Case and Comment 453

That attempts to answer the com

courts are not well placed to deal
relating to non-payment, or that
this Article is more complicated th
decision of the Court of Justice illustrate.
First, what if there are several places of delivery or provision of
services? Where these are all in one Member State Color Drack held
that the court at the "place of the principal delivery" determined by
"economic criteria" has sole jurisdiction. There identical goods were
delivered in differing quantities at the same price so the principal de-
livery was merely the one with the largest number of units. Different
facts make it more difficult. Where there is no one principal place, the
CJEU held that the claimant can choose one of the places of delivery in
which to sue for all the claims arising. Previous Brussels Convention
caselaw was different. In Case C-420/97 Leathertex v. Bodetex [1999]
E.C.R. 1-6747 the claimant also had a choice in these circumstances,
but could only sue for the part of the obligation which was performed
in that place. Leathertex lead to a dépeçage of the proceedings, and the
possibility of irreconcilable judgments: neither is appealing. The sol-
ution in Leathertex does not survive for Article 5(1 )(b) contracts
(Rehder, [37]). In Wood Floor Solutions Andreas Doomberger GmbH v.
Silva Trade SA (Case C- 19/09, Judgment of 11 March 2010, not yet
reported) Color Drack and Rehder were developed to cover the case
where the places of delivery or provision of services are in several
Member States. The claimant sought damages for termination of a
commercial agency contract. It had provided the agency services
(negotiating and concluding contracts, communicating with the prin-
cipal and complying with instructions) in a number of states, but its
business activity was largely conducted in Austria. The CJEU ident-
ified the place of provision of services as "the place of the main pro-
vision of services by the agent". This place must be deduced from the
provisions of the contract itself, or if that is not possible, by the actual
performance of the contract. That is a question of fact for the national
court (para. [40]). If it cannot be decided, then the place where the
agent is domiciled is the place of performance.
Secondly, how is the place of delivery or provision of services to be
identified? Where the contract expresses where performance is to be
achieved, that is decisive. In Car Trim GmbH v. Key Safety Systems Sri
(Case C-381/09, Judgment of 25 February 2010, not yet reported) Car
Trim claimed damages from KeySafety for wrongful termination of a
contract under which Car Trim was to manufacture, supply and deliver
airbags to KeySafety's specification. The CJEU held that the place of
delivery can be chosen by the parties because Article 5(1 )(b) provides
"unless otherwise agreed... the place in a Member State where, under the

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454 The Cambridge Law Journal [2010]

contract, the goods were delivered". Linking the two p

does not seem to permit the parties to choose another obl
the contract to locate jurisdiction, such as the place o
Additionally, the previous caselaw did not permit a fi
delivery (Case C-105/95 MSG v. Les Gravières Rhénane
1-911). Nevertheless, what if there is no express place of d
Brussels Convention caselaw referred to the private in
rules of the forum in order to identify the applicable law
whose rules of domestic contract law would fill the gap w
term as to the place of delivery (Case C- 12/76 Tessili v
E.C.R. 1473). The Court of Justice in Car Trim rejected th
noted that the autonomous definition of the place of deliv
after Color Brack precluded an application of the private
law rules of the forum. The place of delivery was to
purely factual criterion", ([52]). In this case where th
carriage of the goods that is where they "were physically
should have been physically transferred to the purchaser
destination", ([60]). This is consistent with a finding in W
factual performance of the contract can be relied on, but
that is consistent with the parties' intentions, ([40]).
Those conclusions do not resolve the problems wher
performance of the delivery obligation. If the contract is
place of delivery or if performance is at the option of one
how is the place of delivery or provision of services to be i
possible that in such a case Article 5(1 )(b) does not ap
right, either Article 5(1 )(a) fills the gap (including the ru
Article 5 is altogether inapplicable: see Besix SA v. Kre
C-256/00 [2002] E.C.R. 1-1699).
Where the contract can be described as having on
obligation, such as a contract to fly a passenger from
another, then neither place is principal (Rehder). The c
ger suing for compensation for a cancelled flight can cho
sue in the place of take-off or of landing. A provider of f
passenger for non-payment can presumably likewise ch
it is doubtful that the passenger defendant would have
sued in those places.
Thirdly, how are contracts classified within Article 5(1)
tract of sale which contains some continuing obligation on
(for example, to maintain the goods sold) fall within Arti
so, into which indent? Or does it fall in Article 5(1 )(a)? C
do not come within Article 5(l)(b) are dealt with by A
(Article 5(l)(c)). These include contracts the performa
takes place outside the EU. Also, contracts which cann
as falling within a particular indent of Article 5(1 )(b) are

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C.L.J. Case and Comment 455

to Article 5(l)(a) following Falco P

E.C.R. 1-3327). There a claim unde
tual property was neither a sale of
Car Trim the CJEU noted that ea
the characteristic obligation of the
or provision of services). Therefore
a contract falls, the court held t
teristic obligation of the contra
include matters of EU and intern
of Directive 1999/44 on the sale
guarantees (O.J. [1999] L 171/12) wh
supply of consumer goods to be c
ferred to Article 3(1) of the Vien
International Sale of Goods and A
Convention on the Limitation Period in the International Sale of
Goods, both of which consider certain contracts ones for the supply of
goods. As neither Convention has been adopted into English law, these
factors are more difficult for an English court to apply. Additionally,
where the purchaser has supplied materials the contract is more likely
to be a contract for the provision of services. Finally, if the seller
bears the responsibility for the quality of the goods then it is more likely
to be one for the sale of goods. These factors only help classify
straightforward contracts. The last factor in particular appears to need
reference to some domestic system of law to determine on whom re-
sponsibility lies. This is inconsistent with its conclusion that the place of
delivery or provision of services is an autonomous concept.
It does not seem from these cases that the insertion of Article 5(1 )(b)
has achieved greater simplicity or clarification.

Pippa Rogerson

KEEPING UP APPEARANCES: THE COURT OF JUSTICE AND THE EFFECTS

OF EU DIRECTIVES

On 19 January 2010, the Court of Justice of the EU delivered its ju

ment in Case C-555/07, Seda Kücükdeveci v. Swedex, (not yet repor
which provides the latest twist in the saga of cases concerning the
effects of EU directives which have not been implemented or have
incorrectly implemented by national law in actions involving p
parties. In Marshall I (Case 152/84, [1986] E.C.R. 723), the Court
lying exclusively on a textual interpretation of the (then) Artic
EC - later Article 249 EC and now Article 288 TFEU- set out the
principle that, given that directives are addressed to Member States,

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