Conflict Lectures- l3, l4

8/3/2019 Conflict Lectures- l3, l4

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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 BrusselsConvention.

- The Regulation is an update of a Convention, although in most but notall 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 conventiono Iceland, Norway, Switzerland in its terms Lugano almost

identical to BRIo 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 Conventiono Name of report???

- The Schossler report (?) good, but no longer

allowed to use it, sot the EU decided regulations of the EU do not comewith reports, not possible to have experts explain the relevantprovisions

o Makes the status of the SR somewhat ambiguous in sense did

have a report, which in some ways same, but no longersupposed to look at it but we still look at it but technically atleast SR does not have the legal force it once did when BC wasin 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


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(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 bycontract, 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 becontractual is different

- Dispute is whether English or German courts have jurisdiction, do theyadopt a Eng, German, or 3rd and independent meaning characterisationof contract?

o Under BRI the answer is the 3rd do not adopt of any one

jurisdiction approach to interpreting said to be teleologicalinterpretation

o Means a purposive interpretation see the purpose of theregulation 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 employwithin own legal system, so we have coherence within the system.

- Downside is that simply to not have without more an autonomousmeaning of words like contract, no international usage whicheveryone takes, no European sense of contract can appeal to, and v

attractive to say adopt teleological, but will see in text v difficult to seethe purpose, is a gift to be construed as contract in light of the


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regulation- Which means that if there are to get answers ultimately will have to ask

the ECJo 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 nolonger 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 apreamble at the front not v that helpful really

- When look at other regulations will see preamble more important, e.g.Rome II

(1) 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 onby claimants, whoever they are and wherever they come from, i.e. fromoutside the Member States)

*C-814/79 Rffer[1980] ECR 3807 (action by council to recover cost ofremoving barge not civil/commercial, even though claim framed as a tortaction)

*C-190/89 Marc Rich [1991] ECR I-3855 (exclusion of arbitrationincludes cases where existence of arbitration agreement is in dispute)

*C-391/95 Van Uden [1998] ECR I-7091 (dispute agreed to bearbitrated is civil or commercial, and not excluded, even though no court hasjurisdiction over it)

*C-185/07Allianz[2009] ECR I-(Feb 10) (exent and consequences ofthe exclusion of arbitration from the material scope of the Regulation: noinjunction to protect arbitration agreement).

*West Tankers v RAS(The Front Comor) [2007] UKHL 4, [2007] 1Lloyds 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, inparticular, to revenue, customs or administrative matters.

- What about claims against public bodies then? Do they fall within oroutside of the regulation?


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- Whether or not something civil and commercial is determined by thenature of the claim, not by nature of the claimant or D, so perfectlypossible for BRI to apply to public bodies only if the obligation reliedupon is peculiarly public will the BRI NOT apply.

- Example of autonomous meaning:

- Case Rffer[1980]o Council, trying to remove a barge

o Tort claim

o ECJ says no tort claim, its a public law claim for public expense

being recovered by public body, not civil/comm. Falls outsideBRI

o But note fact would characterise as public not determinative

o Admin matters outside too

- Some specific exclusions in 1.2:

o

(a) the status or legal capacity of natural persons, rights inproperty arising out of a matrimonial relationship, wills andsuccession;

- There actually are separate regs in terms of family law matters but notcovered on those course

o (b) bankruptcy, proceedings relating to the winding-up of

insolvent companies or other legal persons, judicial arrangements,compositions and analogous proceedings;

- These bankruptcy proceedings outside too, and again, separate

regulations for this, not covered here

o (c) social security;

o (d) arbitration.

- But noticeAllianz[2009] case one of issues arose was whether ornot an English injunction to protect English arbitration proceedings willstop proceedings coming up fell foul of BRI

- And an argument to say possible was the exclusion of arbitration from

scope of art 1, held by ECJ that that isnt what the effect of 1.2(b) is inAllianz,

- In case said that an attempt to do this (injunction) is flatly inconsistentwith purpose of BRI.

General Provisions


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(2) Is the defendant domiciled in the United Kingdom? Article 2

Civil Jurisdiction and Judgments Order 2001, SI 2001/3929, Sch 1,para 9

Article 2- Note that Briggs when he writes about BRI reorders all of the regulation

numbers, gives them logical priority, so certain provisions which aremandatory

- But that is confusing, better to stick with order regulation uses- The general provision is art 2, starting point for rules on jurisdiction, in

part art 2.1

- Article 2

o 1. Subject to this Regulation, persons domiciled in a Member

State shall, whatever their nationality, be sued in the courts of thatMember State.

o So rule based upon domicile, D to be sued in ms where he is

domiciledo Q then arises what constitutes place of your domicile

o To answer that distinction natural persons and corporations

o Contained in article 59

1. In order to determine whether a party is domiciled in theMember State whose courts are seised of a matter, the court shallapply its internal law.

o SO despite what generally thought BRI adopting autonomous

meanings, here NOT given autonomous meaning, each MSapplies its OWN rules to work out whether an individualdomiciled there, with consequence possible incoherence

o Domiciled in England when Civil Jurisdiction and

Judgements Order 2001.

2 conditions:

1. Be resident here

2. Residence indicates a substantial connection with theUK when have a substantial connection? Presumehave if have been resident here for 3 months or more

So usual position will presume domicile for beingresident here 3+ months

o What if work out not domiciled in Eng?

59.2 - 2. If a party is not domiciled in the MemberState whose courts are seised of the matter, then, inorder to determine whether the party is domiciled inanother Member State, the court shall apply the lawof that Member State.


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o So look to French law if think someone domiciled France, only

use CJJO to work out if someone is domiciled in ENGLAND,doesnt say anything about any other country

Theoretical problem is that could have a gap, sosomeone could be resident nowhere, could say clearly

EU, but under rules every single ms not domicile there,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 rulessay in Eng, Fr more in France but much less of aproblem

Much bigger theoretical problem if cannot be suedanywhere

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, a company or other legalperson or association of natural or legal persons is domiciled at theplace where it has its:

(a) statutory seat, or

(b) central administration, or

(c) principal place of business.

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 wayo The phrase statutory seat no real meaning in Eng so given

definition in BRI

2. For the purposes of the United Kingdom andIreland "statutory seat" means the registered officeor, where there is no such office anywhere, the placeof incorporation or, where there is no such place

anywhere, the place under the law of which theformation took place

o But some because no registered office, so if no such place,

where no place of incorporation, and if not that place offormation of company, and that gives the statutory seat

o More difficult for our purposes, to understand, is art 60(3).

3. In order to determine whether a trust is domiciledin the Member State whose courts are seised of thematter, the court shall apply its rules of private

international law.


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o SO who is art 60(3) contemplating can be sued a trust can be

sued assuming can sue a TRUST a trust has legalpersonality

o As matter of domestic common law, is that true

o If trustee runs away with money, sue trustee, not the trust.

o If are an English common lawyer, trusts dont have legalpersonality so this sub article is a v peculiar provision, it iscontemplating 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 problemquestion, starting point will always be domicile. And in a sense if

thinking of it as flow chart this should always be first point in problemquestion if not, fall into traditional common law rules- If IS domiciled, starting point, 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 Ds domicile relevant in terms of jurisdiction

but not to other BRI rules

Arts 3 + 4- Article 3

o 3. 1. Persons domiciled in a Member State may be sued in

the courts of another Member State only by virtue of therules set out in Sections 2 to 7 of this Chapter

- Means old common law rules gone, excluded by art 3, cant go lookingat them

-- Article 4:

o

1. If the defendant is not domiciled in a Member State, thejurisdiction of the courts of each Member State shall,subject to Articles 22 and 23, be determined by the law ofthat Member State

- Notice again ONLY for rules of jurisdiction, not with recognition orenforcement or LAP

Exceptions to Article 2

- Reason must be same sort of reasons with English forum conveniensrules


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- 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 Ds 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, these are rules, they arenot open invitations to courts to engage in some balancing exercise inway would be approached in Spiliada

- And one of Q think which approach prefer, Spiliada or BRI comparative law exercise,

o Within this country we have completely different approaches to

jurisdiction depending or not whether d domiciledo But obvious question which approach to be preferred

(3) Is the defendant domiciled in another Member State (article 59 (52BC))? If so, does the English court have special jurisdiction? Articles 5 and 6

(a) Article 5.1: special jurisdiction over matters relating to a contract

*C-26/91 Jakob Handte [1992] ECR I-3967 (no obligation freelyentered into with regard to another means not contractual; claim by sub-buyeragainst manufacturer may not be within the article)

*C-334/00 Tacconi[2002] ECR I-7357 (damages for failure to negotiatea contract in good faith not within article 5.1)

266/85 Shenavai[1987] ECR 239 (if there is more than one suchobligation the accessory obligation may follow the principal one)

12/76 Tessili[1976] ECR 1473 (place of performance is determined bynational 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, 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 deliverywithin the one Member State gives jurisdiction to local court at the place ofprincipal 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 Lnsfrskringsbolagens AB [2001] 1 AC 223


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Article 5

o A person domiciled in a Member State may, in anotherMember State, be sued:

o 1. (a) in matters relating to a contract, in the courts for the

place of performance of the obligation in question;- So have a special rule laid out in relation to contracts, expanding the

options of the contacts, dont say the only court can take jurisdiction isgoverned by 5(1)(a), there are alternatives, giving claimants anadditional option

- 2 questions of interpretation arise in relation to this provisions:- 1. What does matters relating to a contract mean?

- 2. What does place of performance of the obligation in questionmean?

Matters relating to a contracto Here no doubt at all that the approach is to adopt an

autonomous meaning in way explained earliero Authority - Handte [1992]

o Have cases where domestic law courts have seen as

contractual but ECJ has said no, and vice versao Handte first example of it- domestic law courts

French case Have a contractual chain where goods are manufactured,

then sold on to a buyer, who then sells them on again toa sub-buyer, and then the sub-buyer is injured by theproduct

And wishes to bring claim not against firm that sold himthe goods but manufacturer

If are English how would characterise that claim?

Tort Donoghue v Stevenson case

But French said no, not extra contractual liability tort said allowed to sue upon the contract prepare tointerpret this to exception to privity of contract

This view is not generally accepted, not even in Frenchlaw

But can see that if live in jurisdiction which v broadexception privity, can construe such claim as contractual,cf a jurisdiction more like Eng would not be prepared tosee as contractual

But ECJ says doesnt care, not contractual claim, bc anyobligation to sub buyer not obligation freely entered into,no prior dealings, not contractual dispute so not

contract, not in 5(1)


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o Another e.g. Peters [] - Dutch decision

Under Dutch law, have members of an association whereone member of the association trying to form claim upnother members of association upon clubs 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, Dutch saw this as underclaim of associations

ECJ said dont care, fact law in the Netherlands said noncontractual, irrelevant, 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 thosevoluntarily assumed obligations which English law recognised but doesnot characterise as contractual

- Q are some of the things which we have been characterising as acontract law really within contract as for the purposes in BR

o Why isnt giving something to someone to hold a contract under

English law assume because no considerationo If pay, 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 elseo So if were a betting man, what would say would be

characterised as contractual by ECJ, bc no considerationconcerns

o Only UK and Irish

o And then once say that other things dont think as contractual

and only not contractual bc considerationo Another example

o A promise gratuitous promises usually would go to into tort of

negligence a lot chucked into liability for negligenceo RS thinks tort of negligence does not make sense, not such

thing bc duty in cases like HB v H a promissory duty,voluntarily assumed v different from duty all under not tonegligently injure A

o But then diff rights only good for those under promises, like

HEDLEY BYNRNE v H voluntarily assumed duty like acontractual, 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, but claim failsbecause of this


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o Say driving in car speakers no liability accepted but run

into him negligently is the disclaimer going to be effective noo 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 laibilitywhen know in Tort this doesnt work generally so why coulddisclaim it in HB arose from the promise the only possiblesource was that a promise or an undertaking was being made,or an assumption of responsibility and need this to get claim offthe ground and disclaimer made it clear no AoR and that iswhy the claim fails quite different from the claim in DvS noAoR 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 disclaimero

Why lose sight of this in English law? A reason of history claims like HB are what used to be claims in assumpsit avoluntarily assumed duty case

o Not what is going on in DvS, no assumpsit here, just

straightforward action on the caseo 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 bodyof 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 treatmento Duties of hospitals again one of the assumpsit duties and

can show in that were in a different position bc thenresponsibility

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 dutyo So category of positive duties which are assumed duties which

could be construed as contractual is quite broad- Other - 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 notcalling it contractual bc of rules on consideration but only UK and

Ireland have this, not really tort claims under regulations, contractactions really should be under 5(1)


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- ((Doesnt this mean the doctrine of consideration makes no sense))- ((And think cannot ever claim specific performance, and not absolute

duties like contract, to achieve results, the defences are different, e.g.contrib. negligence, so for those reasons there vol assumed duties arefully contractual btu not deicive for PriL cases))

- Next set of cases- The 2nd c roman jurist Gaius divided civil claims into too ex contr.

And ex delicti (tort)o BUT even then clear not end of story

o Bc other e.g. money paid by mistake -

o Then demand money back. B says no

o Court to try to recover money.

o Can get money back? Yes

o What is the anteur (?______________) of claim have

o

Is it contractual? Any promise, agreement? not even apromiseo Is there a tort, 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 contractumand quasi ex delicto as if upon a contract

o The addition of those words actually makes it clear it is not a

contract,o Trouble with phrases is that:

It gets bodelrised (?____________) into English think itis a bit like contract

And not telling why liability is being imposed at all,doesnt say anything

All quasi tells you is that it isnt anything,something else

o Traditionally contract books used to have quasi contract

sectionso Modern lawyers not prepared to say that, would say different

principle underlying this, would say based unjust enrichment,

obligated to make restitution, claim in unjust enrichment, notcontract or tort

o (Why isnt ue treated as gift? Bc -The mistake makes all the

difference so in jargon, there is an unjust factor. And there areall sorts of other reasons gun at the head would be duress or undue influence would have to look at positive reasons ifyou are a civilian answer rather different what looking is nota positive reason but the absence of a legal ground if paymoney for mistake in English law would say mistake grantsrecovery a German lawyer would say no basis for thetransfer, was there any intention to make a gift, no contract, nocourt order, no,, in absence of this no explanation simply for


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the transfer so not looking for a positive reason for recoverybut absence. Has English law moved to that position now 2different ways but on neither conception seen as a contractissue)

o Is that a matter relating to contract, mistaken transfer?

o We would say, no it isnt,o But there are more borderline cases

o 2 cases = 2 HL decisions

*Kleinwort Benson v Glasgow City Council[1999] 1 AC153

*Agnew v Lnsfrskringsbolagens AB [2001] 1 AC 223

o The cases are reconcilable but approaches quite different

o Because conceptually, not contract actions, not con claim in

contract

o But may be for certain purposes, for Private International Lawcases might want to take them as contractual for the purposesof reg, would be better a teleological interpretation mandatedas conceptual

o Kleinwort Benson v Glasgow City Council [1999] 1 AC 153

Case which was one of many swap cases which camebefore HL

Had a set of rules imposed by M Thatcher, wanted to capmoney used by councils, had been borrowing loads ofmoney

Conservatives tried to stop that

In order to escape these caps, these (mostly Labour)councils came up with council rate swaps withcommercial effect of being loans. In order to get moneycould then spend on council things

So entered into transactions under advice were valid

But HL said no, all these contracts are just disguisedloans and they are void bc councils had no capacity toenter into these

Concluded LA/s lacked authority to enter into these, and

as a result all entered into VOID SO, the people who are losing are trying to claw back

money from the counter-party, get the money back

So in case Glasgow CC, trying to get money back fromthem

Prima facie result would be Scottish council domiciled inScotland, so under art 2 the Scottish courts would havejurisdiction, 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 ofperformance is England bc that is where payments were


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made

(Could say ECJ no jurisdiction) finished in HL bc this isan internal UK matter

The HL adopted a conceptual approach which is to saythese contracts are legally a nullity bc Glasgow CC is

acting UV Claim here is to reclaim back money paid, claim in unjust

enrichment, not a contractual matter at all, contract is anullity 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 tohave this analysis

Say A wants private tuition form B pay upfront, and thendo not do it. Breach of contract, but turns out get 1st

anyway.

Could say give back the money. Is it technicallybreach of contract if dont give money haventdone, which means would be left unjustly enrichedif dont get money back

If say reason dont do teaching drops down dead contract here is discharged, frustrated can you getmoney back? Yes, even though discharged shows rightto get money back show not based upon contract itself

Would be v inconvenient if that claim was not treated asmatter related to a contract would b v inconvenient ifonly damages and specific performance will ALSO

include claims to get back money so that is at the otherextreme from KB

o In the middle -Agnew- attempt to rescind the contract for non-

disclosure not claim based upon a contract what trying to dois set aside a contract so question is that a matter relating toa 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 specialjurisdiction in addition to Ds domicile.

- There are some cases where courts where the D is domicile wherehave exclusive jurisdiction but not what concerned with at themoment 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 -


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- Matters relating to restitution

- Some easy cases- Gaius Justinian Digest 6AD quasi-contractual obligations but

words as if give game away, not really based upon contract, even onthis view

- And that got debased in its English translated in category quasi contract used to have these sort of categories/chapters, textbooks.

- Dont any more- Clear that sort of case is outside of scope of 5.1 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 arent 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.o Specific performance? No, 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, if the painter dies), no contracto Money make restitution, money goes back

o Shows the obligation to return the money isnt restitutional

o Money paid on condition the work is done, but not a contractual

righto What would probably be if we say that claim, restitution, falls

outside 5.1? or isnt there a problem? Is this claim for restitutionrelated to the contract? It is, it would be v inconvenient if wedidnt group together scope of one will determine the scope ofthe other joined at the hip, not same cause of action tech butis

o Still matter relating to the contracto Easy cases at 2 extremes no contract at all, outside 5.1.

o Other extreme there is a contract, arising from contract, 5.1.

- But what about a claim for a declaration that a contract is a nullity ifclaim being sought by the claimant is of a negative kind? Wants toargue there is no contract? BC might say void for public policy, oragreement not reached so seeking a declaration - 2 qs:

o Can you seek a negative declaration? Are they possible or not?

Yes, they are possible people might have perfectly sound

commercial reasons want to do future planning, know whatrisks can legitimately run with your assets if have multi-billion


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claim constrained, want declaration of no liabilityo But problem allows ppl to abuse the system using the Italian

torpedo but not the negative declarations fault, but Italiantorpedo

- So a claim that there is no contract within art 5.1. seems sensible

clearly the existence of a contract is a matter rel to a contract

- Next-- What if no doubt the contract between the parties is a nullity? No

agreement at all form word go, but what are seeking is restitution, fromwhat did thinking the agreement was valid? In Kleinwort Benson vGlasgow City Council [1999] borrowing, had been declaredunlawful 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, 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 thatseeking a nullity is within 5.1.

- And know certain rest claims arising linked to contract are within 5.1 still matters relating to a contract

- Benson question is that within 5.1. D Glasgow CC but bank dont want to sue in Scotland want to sue in London reason inbackground why wanted to sue here was thought at least possibilitywould be advantageous limitation period in England (6 cf 5 years)

- So trying to slot claim in .. 2???- And want to claim 5.1. - Argue this case know that a negative declaration is a nullity, is within

art 5.1.- Know that restitutionary claims arising in the context of a contract are

within 5.1.

- Put examples together, can try and argue, claim for restitution incontext contract is a nullity should also be within argument by bank

HL rejected said this was an unjust enrichment claim, falling outside5.1., 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 5.1. q was w/er the benefit

under a voidable contract was within art 5.1. and answer was yes it is

- Now contracts may be voidable for no of reasons if hold gun at head- - contract voidable make it voidable because you might still think itis 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


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duty of disclosure ariseso Contract of insurance contracts usually thought of as contracts

of ultimate good faith insured duty to tell other side of all factscommercially relevant to entering contract

o E.g. 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 iso But not true generally generally not true in contract law

o E.g. if buy some oats from B, and A thinks they are valuable old

oats, when B knows valueless old notes B doesnt have to tell contract law allows to exploit the stupidity other people takeadvantage of facts know even though they are making amistake, can take that, unless making mistake as to the terms ofthe agreement only then no agreement

o

But insurance contracts exception to this cannot exploitignorance counterparty, have to tell them about relevant factso So in Agnew case where alleged that the Ds had failed to

disclose all of the relevant material facts and as result ability torescind the agreement and claw back any benefits receivedunder agreement

o Benson contract void form word go, no capacity to enter

o Agnew held WIHTIN art 5.1. = claim to avoid a contract and

recover within 5..1o But again a contractual action in te true or narrow sense

o Basis of claim again unjust enrichment, avoid contract.. but HL

doesnt matter, matter rels to a contract not confined to claims ofcontract, broader

- Some ppl view this as an unhappy distinction Is the distinctionBenson and Agnew too thin?

- Perhaps qualitative difference btn contracts which know are void andvoidable

- But in B Finance (__________________?) said that to said void waswithin 5.1.- - so narrower approach to what matters relating to contractmeans

The Place of Performance of the Obligation in Question- Second phrase need to interpret under 5.1. is place of performance

of the obligation in question- Agnew (claim to rescind contract for non disclosure and claims to

recover back payments made) which is the obligation in question inAgnewpossibilities, for purposes of this provision:

o Obligation to make disclosure obligation to speak up n say are

ill the pre-contractual obligationso Obligation performed to pay out

o D now under a duty to make restitution of the money paid - So those 3 main all 3 potentially the obligation in question so q


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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 5.1.- So q how apply that to other cases of rescission

- They seem to be focusing on these pre-contractual obligations beingobligation in question

- So how apply to e.g. MR relevant obligation duty not to MR, not toapply duress think where breached

o Technicallllly, these arent actually duties at all things done

wrong in formation of contract not actually duties in the formalsense but the HL chose that to be the obligation in question

- Outside of the context of rescission the obligation in question thestarting point is now 5.1(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, the place of performance of the obligation in question shallbe:

o - in the case of the sale of goods, the place in a Member State

where, under the contract, the goods were delivered or should havebeen delivered,

o - in the case of the provision of services, the place in a

Member State where, under the contract, the services were provided

or should have been provided,

- Draftsmen seem to have in mind case where goods no good or notdelivered

o (But imagine case delivered in France though should have been

in England but answer will be probably no, bc deliverance inFrance will not be performance of the contract wont count asperformance at all in that situation only court with jurisdiction where SHOULD have been delivered)

- But 5.1.B - will cover a large no of situations but not all can imagine

e.g. interest rates will not be seen like this, - Not sure what other contracts are within service e.g. a franchise??

Would it be in- Words unless otherwise agreed doesnt related on where

performance rendered but what the obligation in q is the obligation topay for the services or the goods so reverse 5.1.b allows them tochoose obligation in q was a diff obligation

- What if are outside of 5.1.b?- When talk about obligation in question talk about primary contractual

obligation, 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


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- .- Where there is multiple obligations which could be relied upon in

contract looking at place of performance of principal obligation notnecessarily always readily determinable

- Generally speaking talking about the obligation being relied upon by

the claimant- Leading case - Tessili[1976]

o Looking at primary, 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 placeof obligation in question if English law look at eng law to look atwhere the obligation is to be performed and the authority for this isTessili a rather unusual position, ECJ deferring where to determine

- 5.2. skipping over

(b) Article 5.3: special jurisdiction over matters relating to atort/delict/quasi-delict

*189/87 Kalfelis [1988] ECR 5565 (covers all actions seeking toestablish the liability of a defendant which are not matters relating to acontract within article 5.1)

*C-334/00 Tacconi[2002] ECR I-7357 (damages for failure to negotiatea contract in good faith within article 5.3)

*21/76 Bier[1976] ECR 1735 (harmful event is where damage occursor where event giving rise to it took place)

*C-220/88 Dumez France [1990] ECR I-49 (damage done to theimmediate victim, or direct and not more remote loss, is what counts)

*C-68/93 Shevill[1995] ECR I-415 (defamation, where the harmfulevents of publication occurs in more countries than one)

*C-364/93 Marinari[1995] ECR I-2719 (place where consequentialfinancial loss is suffered by reason of acts occurring elsewhere does not havejurisdiction)

*Domicrest Ltd v Swiss Bank Corp [1999] QB 548


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5.3 Tort:

o 3. in matters relating to tort, delict or quasi-delict, in the courts

for the place where the harmful event occurred or may occur;

- 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, vicariousliability, or occupier of land

- For our purposes this label means instances of strict liability within therole of tort

- Kalfelis v Schroeder[1988] READ!o Q w/e art1 5.3 should be read expansively, broadly CA (?)

said no

o Art 2 default rule, narrowly, not deprived of all meaningo But also said where a claim is to establish liability and it is not

within art 5.1., it is within art 5.3o So on its face, it seems if it is not a matter relating to a contract

it is a matter rel to a torto 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, no special rules restitution

- So some people (e..g Briggs) rely on Kalfelis if not within 5.1. will be5.3. so restitution will be 5.3. but this would be to give 5.3. anexpansive reading, 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, it is within 5.3.- If trying to bring claim or restitution, is that a claim for loss? Its based

on the Ds GAIN claim for GAIN, not loss- Schadenshaftung liability for loss, in orignial translated as haftung,

just liability reading in German clear

- And that is how can explain why courts were also saying had to adoptnarrow reading

- Original saying not that if not 5.1. 5.3, but saying all claims liability forloss fall under 5.3.

- Briggs- other argument now have Rome II Regulation have to fit allclaims within 5.1. or 5.3.

- Rome II covers ALL claims for liability which are not contractual! - He thinks that means should read the jurisdiction rules similarly dont

see logic in that at all!! means need to read special jurisdiction rulesin RII, not logically necessary bc there arent any gaps if not 5.1.and 5.3. go back to art 2, default rule!!! So not problem, really

- So from Kalfelis learn not all no fall 5.1 will 5.3


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- 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.- Case Cassio (?) English case- Contract with trad rules under which

- Traditional rules eq rules havent been classified as tort but do so forpurpose of regulation

-- SOME decisions of ECJ:- Tacconi [2002] German law claim culpa in contrahendo fault in

negotiation causes loss to other side, have this head of liability.- So LS seen outside liable- Here ECJ said dont care what gr cl say for domestic purpose on

classification autonomous meaning given within 5.3. and fits withKalfelis claim for loss which is non contractual and is put into 5.3

- Next difficult point under 5.3 is that the court which is given specialjurisdiction is the court of the place where the harmful event occurredor may occur

- That language is at least an improvement on old Brussels Convention now clear covers claims for an injunction to prevent from occurring hasnt yet happened which BC on wording didnt 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 btniniuria and damnum injury and harm problem, is that as usage use injury and harm interchangeable, when as a matter of law they arenot one and the same thing

- Say are on holiday in Dublin, when someone runs over, legs h- Returning to England, serious pain, loss of amenity, cannot work, incur

v high costs of care all various case for damages familiar with whenthink personal injury

- Could say the injury, the wrong, right violation, occurred in Ireland,when run over and legs broken

- The consequential harm, loss, happening here, in England, here iswhere consequence loss suffered

- So what does art 5.3 mean does it mean where injury occurs or

where consequential loss is suffered- Game given away by word event, where iniuria injury happens inthis case Ireland, not here when conseq loss suffered

- Other examples- Say car driving was As car car damaged in Ireland but cost of

replacing it in England- Again, when talk prop damage where goods are damaged, not where

expenses happen link Dumez France case

- RS thinks that is what 5.3 is saying, distinct injury and harm- When look at cases will see that not precisely the language being

used, but that is what they are groping towards, this distinction - N interesting area where this has been applied in relation to


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defamation:- Shevill [1995]

o Publication of a French (?) magazine with a low circulation in

this countryo Some but not much

o And claimants want to claim in England rather than in placeswhere the magazine is distributed the most

o Claiming here bc will presume actionable injury calling

someone paedophile but here can claim without consequentialharm, violation rights reputation

o Also advantageous bc dont require proof of forcity (?

____________) dont have to prove elements of claim thatwhat 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 tothe extent to which the wrong occurs hereo If a pub takes place within ms, will have jurisdiction, but only

insofar copies there, harm thereo In this case only for pub in England if relatively low circulation

here, damages will be relatively lowo w/as if publication with v large readership, higher, bc damages

reputation higher

Anti claimant in sense would have to go to eachcountry all jurisdiction v unusual bc ECJ usuallykeen to consolidate claims within same court

o So eng courts did have jurisdiction only under that portiono 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 defstatement in B, Fr, G where injury happening and courtssay each jurisdiction occur but only in relation to that bit of theinjury

o Shivell concerns libel how far could you apply it, 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, the likelihood of there being a greatpublication here not v high but if are complication here why not really a worry though for US, even though worry? Bc notms. 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, said claim based on where acted upon what have beentold negligently that court jurisdiction under 5.3.

o But,, , notice that there is at least an argument should havebeen 5.3.,, but claim based upon HB principle, so just assumed


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fell under 5.3 and work out where arises but at leastARGUABLE that HB claims could fall under 5.1!!!!

- 5.4 does mention claims for restitution but VERY narrow:

o 4. as regards a civil claim for damages or restitution which isbased on an act giving rise to criminal proceedings, in the courtseised of those proceedings, to the extent that that court has

jurisdiction under its own law to entertain civil proceedings;

- 5..5 special rules in rel to agencies

o 5. as regards a dispute arising out of the operations of a

branch, agency or other establishment, in the courts for the place inwhich the branch, agency or other establishment is situated;

- Special rules in relation to trust disputes:

o 6. as settlor, trustee or beneficiary of a trust created by the

operation of a statute, or by a written instrument, or created orallyand evidenced in writing, in the courts of the Member State in whichthe trust is domiciled;

ARTICLE 6

- Different sort of set of rules on jurisdiction- Primarily concerns cases where multiple defendants:

(c) Article 6.1: special jurisdiction over co-defendants

This may be taken if one defendant is being sued where he isdomiciled; but it may not be taken advantage of if the basis of jurisdiction overthe first defendant is not taken under Article 2, no matter what it is.

189/87 Kalfelis [1988] ECR 5565C-51/97 Runion Europenne [1998] ECR I-6511

C-539/03 Roche Nederland[2006] ECR I-6535C-98/06 Freeport[2007] ECR I-839C-426/06 Laboratoires GlaxoSmithKline [2008] ECR I-3965

- 6.1.

o A person domiciled in a Member State may also be sued:

o 1. where he is one of a number of defendants, in the courts for

the place where any one of them is domiciled, provided the claimsare so closely connected that it is expedient to hear and determinethem together to avoid the risk of irreconcilable judgments resulting

from separate proceedings;


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- So, under Art, the D must be domiciled within a ms to be caught- But where is, Art 6.1., may be employed to bring other domiciled other

ms but get at least one under that court- Say English D domiciled here, but multiple other Ds domiciled in other

mss EU, - could use the jurisdiction of eng domiciled D to bring in theothers provided claims against all so closely connected that need todo so to avoid irreconcilable judgments

- Notice no requirement under 6.1 that D must be main D, may be amain D, and only reason might be suing would be to drag Eng D beforethe Eng courts nothing preventing from acting in that manner

- Notice how this contrasts with Sheville here trying to get all casesdealt together to avoid inconsistencies, joining the parties together

(e) Article 6.2: special jurisdiction over third party claims

- Art 6.2.

o 2. as a third party in an action on a warranty or guarantee or in

any other third party proceedings, in the court seised of the originalproceedings, unless these were instituted solely with the object ofremoving him from the jurisdiction of the court which would becompetent in his case;

- Easiest case if suing someone on a guarantee have D can sue onbasis obligation, and can then bring in 3rd p d who has given guaranteeof primary obligation

- Notice under this art basis of jurisdiction under primary D doesnthave to be his domicile so cant use 6.1. to bring in all these periferalparties unless one domiciled here

- *C-365/88 Hagen [1990] ECR I-1845

6.3 about counter claims:o 6.3 .

Documents

Conflict Lectures- l3, l4