CASES OF INTERNATIONAL

CONTRACTSCourt jurisdiction

and applicable laws

http://eulaw.typepad.com/eulawblog/2010/12/internet-sales-jurisdiction-and-consumer-protection-joined-cases-c-58508-and-c-14409.html

LEGAL ACTS:

1. Brussels I COUNCIL REGULATION (EC) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters

2. United Nations Convention on the International Sale of Goods 11 April 1980 -CISG

http://www.uncitral.org/pdf/english/clout/08-51939_Ebook.pdf

3. REGULATION (EC) No 593/2008 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 17 June 2008 on the law applicable to contractual obligations (Rome I)

http://www.cojef-project.eu/IMG/pdf/Rome_I_regulation.pdf

4. CONVENTION ON THE LAW APPLICABLE TO CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (Concluded December 22, 1986) Hague

Convention on the Limitation Period in the International Sale of Goods 14.06.1974

(New York, 1974)

5. Prawo prywatne międzynarodowe z dnia 4 lutego 2011 r. (Dz. U. 2011/80/432) art. 28

KPC art. 1103 i 1145 and 1150

NEW YORK CONVENTION1974 The Limitation Convention establishes

uniform rules governing the period of time within which a party under a contract for the international sale of goods must commence legal proceedings against another party to assert a claim arising from the contract or relating to its breach, termination or validity.

The limitation period is set at four years (art. 8)

NEW YORK 1974 applies to contracts for the sale of goods

between parties whose places of business are in different States if both of those States are Contracting States or when the rules of private international law lead to the application to the contract of sale of goods of the law of a Contracting State. It may also apply by virtue of the parties' choice.

1980 CISG The United Nations Convention on

Contracts for the International Sale of Goods

Where the CISG governs a transaction under its rules of applicability (see articles 1-6 of the Convention), the rules of the Convention

bind the parties to the transaction except to the extent that the parties have effectively excluded the CISG or derogated from its provisions

SCOPE OF APPLICATION CISGcontracts of sale of goods between parties whose places of business are in different States: (a) When the States are Contracting

States; or (b) When the rules of private

international law lead to the application of the law

of a Contracting State.

2. The fact that the parties have their places of business in different States is to be disregarded whenever this fact does not

appear either from the contract or from any dealings between, or from information

disclosed by, the parties at any time before or at the conclusion of the contract.

3. Neither the nationality of the parties nor the civil or commercial character of the parties or of the contract is to be taken into consideration in determining the application of this Convention.

CISG - not apply to sales:(a) Of goods bought for personal, family or household use, unless the seller, at any time before or at the conclusion of the

contract, neither knew nor ought to have known that the goods were bought for any such

use;(b) By auction;(c) On execution or otherwise by authority of law;(d) Of stocks, shares, investment securities, negotiable instruments or money;(e) Of ships, vessels, hovercraft or aircraft;(f) Of electricity.

The United Nations Convention on Contracts for theInternational Sale of Goods

1215/2015 BRUSSELS I

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

of performance of the obligation in question;

(b)for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:

— in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered,

— 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;

Persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.A person domiciled in a Member State may be sued in another Member State:

EXEQUATUR an official authorization issued by a host

country reqired outside of UE or in cases listed in art. 39 Bruxels I - no 1215/2012

counrtry of origin HOST

counrtry

CASE 1 Seller of Polish doimicile has sold the

immovable property (land) to Buyer of German nationality and domicile. Yet, the Buyer has not paid the price. The parties did not chose any legal system governing the contrat.

1. What court is to deal with the dispute ? 2. What is the law that rules the case ?

DOMICILE VS FORMAL REGISTRATION

Domicile art. 25 C.C. Domicile of natural person is the place

where that person stays with the intention of residing permanently

The domicile of a child under parental authority - the parent who has exclusive parental authority ot to whom it has been entrusted.

ROME I REGULATION (EC) NO 593/2008 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 17 JUNE 2008 ON THE LAW APPLICABLE TO CONTRACTUAL OBLIGATIONS (ROME I)

Art. 4 c) a contract relating to a right in rem in

immovable property or to a tenancy of immovable property shall be governed

by the law of the country where the property is situated

CASE 2 Seller of Polish nationality has sold the

apples to Buyer of German nationality. Yet, the Buyer has not paid the price. The parties did not chose any legal system governing the contrat.

1. What court is to deal with the dispute ?

2. What is the law that rules the case ?

3. Should the answer be different when the object of sale contract was a computer with software programmes ?

ROME I – ART. 4 Applicable law in the absence of choice1. To the extent that the law applicable to the

contract has not been chosen in accordance with Article 3 and without prejudice to Articles 5 to 8, the law governing the contract shall be determined as follows:

(a) a contract for the sale of goods shall be governed by the law of the country where the seller has his habitual residence;

(b) a contract for the provision of services shall be governed by the law of the country where the service provider has his habitual residence

CONVENTION ON THE LAW APPLICABLE TO CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS HAGUE 1986 Article 8 (1)  To the extent that the law applicable to a contract of sale

has not been chosen by the parties in accordance with Article 7, the contract is governed by the law of the State where the seller has his place of business at the time of conclusion of the contract.

(2)  However, the contract is governed by the law of the State where the buyer has his place of business at the time of conclusion of the contract, if -

a) negotiations were conducted, and the contract concluded by and in the presence of the parties, in that State; or b) the contract provides expressly that the seller must perform his obligation to deliver the goods in that State; or c) the contract was concluded on terms determined mainly by the buyer and in response to an invitation directed by the buyer to persons invited to bid (a call for tenders).

NOT IF PERSONAL USE Article 2 Hague 1986 r.The Convention does not apply to - a) sales by way of execution or otherwise by

authority of law; b) sales of stocks, shares, investment securities, negotiable instruments or money; it does, however, apply to the sale of goods based on documents; c) sales of goods bought for personal, family or household use; it does, however, apply if the seller at the time of the conclusion of the contract neither knew nor ought to have known that the goods were bought for any such use.

CASE 3 Seller of Polish domicile has sold his car to

Company of USA domicile, and the car was to be used for business purposes. Yet, the Buyer has not paid the price. The parties have not chosen legal system governing the contrat in case of the disputes.

1. What court is to deal with the dispute ? 2. What is the law that rules the case ?

3. Should the answer be different when the object of sale contract was bought by private person for family use ?

CASE 4 Seller of Polish nationality has sold the

apples to Buyer of German nationality. Yet, the Buyer has not paid the price. The parties did not choose any legal system governing the contrat.

1. What court is to deal with the dispute ?

2. What is the law that rules the case ?

CASE 5 James Smith, domiciled in Germany, reserved a

room, for a week, in hotel in Austria. He has consulted the hotel’s website and made his reservation by email, using the address indicated on the website. James Smith didn’t like hotel services and left without paying the bill.

The hotel has brought an action before an Austrian court for payment for his stay. James Smith raised a plea of lack of jurisdiction,saying that, as a consumer domiciled in Germany, he could be sued only in the German courts

1. What court is to deal with the dispute ? 2. What is the law that rules the case to be

applied by the court?

CASE 5 - PROBLEMS The problem arose because Article 15 (1) c)

of Regulation 44/2001 sets out protective rules of a consumer

A consumer plaintiff may bring proceedings against another party to a contract either in the courts of the member State in which that party is domiciled or in the courts where the consumer is domiciled and proceedings may be brought against a consumer defendant only in the courts of the member State in which the consumer is domiciled if “the contract has been concluded with a person who by any means, directs [his] activities to that Member State ” /(read Art. 16 also)

QUESTION

Does mere use of a website, whatever the territory targeted, amount to an activity ‘directed to’ other member States which triggers application of the protective rule of jurisdiction referred of Regulation No 1215/2015 ?

CONSUMER’S DOMICILE A)the international nature of the activity, B) itineraries from other member States for going to the

place where the trader is established, C) use of a language or a currency other than the

language or currency generally used in the member State in which the trader is established with the possibility of making and confirming the reservation in that other language,

D) telephone numbers with an international code, outlay of expenditure on an internet referencing service in order to facilitate access to the trader’s site or that of its intermediary by consumers domiciled in other member States,

E) use of a top-level domain name other than that of the member State in which the trader is established,

F) and mention of an international clientele composed of customers domiciled in various member States.

G) Advertising website in foreign media

CASE 5 Read European Court of Justice decision

onInternet Sales, Jurisdiction and

Consumer Protection: Joined Cases C-585/08 and C-144/09