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

(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 Rffer [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 Lloyds 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?

Whether or not something civil and commercial is determined by the nature of the claim, not by nature of the claimant or D, so perfectly possible for BRI to apply to public bodies only if the obligation relied upon 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 outside BRI 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 in property arising out of a matrimonial relationship, wills and succession;
There actually are separate regs in terms of family law matters but not covered 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 o
-

(c) social security; (d) arbitration.

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, held by ECJ that that isnt what the effect of 1.2(b) is in Allianz, In case said that an attempt to do this (injunction) is flatly inconsistent with purpose of BRI.

General Provisions

(2) para 9

Is the defendant domiciled in the United Kingdom? Article 2 Civil Jurisdiction and Judgments Order 2001, SI 2001/3929, Sch 1,

Article 2 - Note that Briggs when he writes about BRI reorders all of the regulation numbers, gives them logical priority, so certain provisions which are mandatory - 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 that Member State.
o So rule based upon domicile, 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. In order to determine whether a party is domiciled in the Member State whose courts are seised of a matter, the court shall apply its internal law.
o SO despite what generally thought BRI adopting autonomous meanings, here NOT given autonomous meaning, each MS applies its OWN rules to work out whether an individual domiciled 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 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 - 2. If a party is not domiciled in the Member

State whose courts are seised of the matter, then, in order to determine whether the party is domiciled in another Member State, the court shall apply the law of that Member State.

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, so someone 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 rules say in Eng, 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, 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, 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 way o The phrase statutory seat no real meaning in Eng so given definition in BRI

2. For the purposes of the United Kingdom and Ireland "statutory seat" means the registered office or, where there is no such office anywhere, the place of incorporation or, where there is no such place anywhere, the place under the law of which the formation took place
o But some because no registered office, so if no such place, where no place of incorporation, and if not that place of formation 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 domiciled in the Member State whose courts are seised of the matter, the court shall apply its rules of private international law.

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, 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 legal personality so this sub article is a v peculiar provision, 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, starting point will always be domicile. And in a sense if thinking of it as flow chart this should always be first point in problem question 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 the rules set out in Sections 2 to 7 of this Chapter
Means old common law rules gone, excluded by art 3, cant go looking at them Article 4:

o 1. If the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to Articles 22 and 23, be determined by the law of that Member State
Notice again ONLY for rules of jurisdiction, not with recognition or enforcement or LAP

Exceptions to Article 2 - Reason must be same sort of reasons with English forum conveniens rules

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 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, Spiliada or BRI comparative law exercise, 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, 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 freely entered into with regard to another means not contractual; 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 5.1) 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, 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 Lnsfrskringsbolagens AB [2001] 1 AC 223

Article 5

o A person domiciled in a Member State may, in another Member 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 is governed by 5(1)(a), there are alternatives, giving claimants an additional 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 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 - Handte [1992] o Have cases where domestic law courts have seen as contractual but ECJ has said no, and vice versa o 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 to a sub-buyer, 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, 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, not even in French law But can see that if live in jurisdiction which v broad exception privity, can construe such claim as contractual, cf a jurisdiction more like Eng would not be prepared to see as contractual But ECJ says doesnt care, not contractual claim, bc any obligation to sub buyer not obligation freely entered into, no prior dealings, not contractual dispute so not contract, not in 5(1)

o Another e.g. Peters [] - Dutch decision Under Dutch law, have members of an association where one member of the association trying to form claim upn other 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 under claim of associations ECJ said dont care, fact law in the Netherlands said non contractual, 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 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 isnt giving something to someone to hold a contract under English law assume because no consideration o 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 else o So if were a betting man, what would say would be characterised as contractual by ECJ, bc no consideration concerns o Only UK and Irish o And then once say that other things dont 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, not such thing bc duty in cases like HB v H a promissory duty, voluntarily assumed v different from duty all under not to negligently injure A o But then diff rights only good for those under promises, like HEDLEY BYNRNE v H voluntarily assumed duty like a contractual, 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 fails because of this

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 doesnt 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, no assumpsit here, 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 - 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, not really tort claims under regulations, contract actions really should be under 5(1)

((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 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. 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 a promise o 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 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, 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, doesnt say anything All quasi tells you is that it isnt anything, something else o Traditionally contract books used to have quasi contract sections o 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, not contract 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 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, was there any intention to make a gift, no contract, no court order, no,, in absence of this no explanation simply for

o o o o

the transfer so not looking for a positive reason for recovery but absence. 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, mistaken transfer? We would say, no it isnt, But there are more borderline cases 2 cases = 2 HL decisions *Kleinwort Benson v Glasgow City Council [1999] 1 AC 153 *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 Law cases might want to take them as contractual for the purposes of reg, 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, wanted to cap money used by councils, had been borrowing loads of money Conservatives tried to stop that In order to escape these caps, these (mostly Labour) councils came up with council rate swaps with commercial effect of being loans. In order to get money could then spend on council things So entered into transactions under advice were valid But HL said no, 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, 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 from them Prima facie result would be Scottish council domiciled in Scotland, so under art 2 the Scottish courts would have jurisdiction, 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

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, claim in unjust enrichment, 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, and then do not do it. Breach of contract, but turns out get 1st anyway. Could say give back the money. Is it technically breach of contract if dont give money havent done, which means would be left unjustly enriched if dont get money back If say reason dont do teaching drops down dead contract here is discharged, frustrated can you get money back? Yes, 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 - Agnew - 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 Ds domicile. 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 -

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 on this 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 contract o 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 right o What would probably be if we say that claim, restitution, falls outside 5.1? or isnt there a problem? Is this claim for restitution related to the contract? It is, it would be v inconvenient if we didnt group together scope of one will determine the scope of the other joined at the hip, 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, 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 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, or agreement 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 what risks can legitimately run with your assets if have multi-billion

claim constrained, want declaration of no liability o But problem allows ppl to abuse the system using the Italian torpedo but not the negative declarations fault, but Italian torpedo 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 NextWhat if no doubt the contract between the parties is a nullity? No agreement at all form word go, but what are seeking is restitution, from what did thinking the agreement was valid? In Kleinwort Benson v Glasgow City Council [1999] borrowing, 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, 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 5.1. 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 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 .. 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 in context contract is a nullity should also be within argument by bank HL rejected said this was an unjust enrichment claim, falling outside 5.1., 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 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

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.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 is o 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 take advantage of facts know even though they are making a mistake, can take that, 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, 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, no capacity to enter o Agnew held WIHTIN art 5.1. = claim to avoid a contract and recover within 5..1 o 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 of contract, 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 5.1.- - so narrower approach to what matters relating to contract means

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 in Agnew possibilities, 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 - So those 3 main all 3 potentially the obligation in question so q

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 being obligation in question So how apply to e.g. MR relevant obligation duty not to MR, not to apply duress think where breached o Technicallllly, these arent 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(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 shall be: 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 have been 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 not delivered o (But imagine case delivered in France though should have been in England but answer will be probably no, 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.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 to pay for the services or the goods so reverse 5.1.b allows them to choose 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

. 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, 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, ECJ deferring where to determine

5.2. skipping over

(b) 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 5.1) *C-334/00 Tacconi [2002] ECR I-7357 (damages for failure to negotiate a contract in good faith within article 5.3) *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, or direct and not more remote loss, is what counts) *C-68/93 Shevill [1995] ECR I-415 (defamation, 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

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, vicarious liability, 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 5.3 should be read expansively, broadly CA (?) said no o Art 2 default rule, narrowly, not deprived of all meaning o But also said where a claim is to establish liability and it is not within art 5.1., it is within art 5.3 o So on its face, 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, no special rules restitution So some people (e..g Briggs) rely on Kalfelis if not within 5.1. will be 5.3. so restitution will be 5.3. but this would be to give 5.3. an expansive 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 adopt narrow reading Original saying not that if not 5.1. 5.3, but saying all claims liability for loss fall under 5.3. Briggs- other argument now have Rome II Regulation have to fit all claims 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 rules in 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

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 for purpose 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 with Kalfelis 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 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 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 btn iniuria and damnum injury and harm problem, is that as usage use injury and harm interchangeable, when as a matter of law they are not 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 when think 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 is where 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 in this 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

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 dont require proof of forcity (? ____________) dont 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, will have jurisdiction, but only insofar copies there, harm there o In this case only for pub in England if relatively low circulation here, damages will be relatively low o w/as if publication with v large readership, higher, 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, Fr, 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, 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 great publication here not v high but if are complication here why not really a worry though for US, even though worry? Bc not ms. 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 been told negligently that court jurisdiction under 5.3. o But,, , notice that there is at least an argument should have been 5.3.,, but claim based upon HB principle, so just assumed

fell under 5.3 and work out where arises but at least ARGUABLE 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 is based on an act giving rise to criminal proceedings, in the court seised 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 in which 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 orally and evidenced in writing, in the courts of the Member State in which the 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 is domiciled; but it may not be taken advantage of if the basis of jurisdiction over the first defendant is not taken under Article 2, no matter what it is. 189/87 Kalfelis [1988] ECR 5565 C-51/97 Runion Europenne [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 6.1.

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 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;

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 the others provided claims against all so closely connected that need to do so to avoid irreconcilable judgments Notice no requirement under 6.1 that D must be main D, may be a 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, 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 original proceedings, unless these were instituted solely with the object of removing him from the jurisdiction of the court which would be competent in his case;
Easiest case if suing someone on a guarantee have D can sue on basis obligation, 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 doesnt have to be his domicile so cant use 6.1. to bring in all these periferal parties unless one domiciled here *C-365/88 Hagen [1990] ECR I-1845

6.3 about counter claims: o 6.3 .<><><><>< o - So if a German claimant brings a claim against a D domiciled in Eng, a counterclaim can be brought against him even though not domiciled in England, and once again the D doesnt have to be domiciled in eng/state where being sued! 6.4 about buying actions in rem in matters rel to contract o M><><><><>< - Classical example ???

(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. 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). *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, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section, without prejudice to Article 4 and point 5 of Article 5, if: (a) it is a contract for the sale of goods on instalment credit terms; or (b) it is a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods; or (c) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer's domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities.

Notice, 15.1, important, the narrow range of consumer contracts which is cover, not all will fall before 15 15.1.A easy hire purchase agreements, mainly B also self explanatory, 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.g. a vacuum cleaner by a German manufacturer, and the eng consumer buys the vacuum on basis of advert, that looks like case of someone directing activities on English market and there by fall within 15.1.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, 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 - e.g. use of language If website is in Greek not directed at the UK, or G, Or Fr and that is usually the answer given in continent o Problem e.g. can translate into English - 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. o An inevitable tension here btn creating a single mkt and protecting consumers o If want to create a sm, where ppl offering goods and services are happy to offer them to anybody within EU, 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, want to sue in own courts, using own laws o Those things, promotion free market, simply in fund tension o And in way that tension borne by saying directed at

Notice art 35 to do with recognition and enforcement - ,

a judgment shall not be recognised if it conflicts with Sections 3, 4 or 6 of Chapter II, or in a case provided for in Article 72.
Will not recognise f judgment if conflict Will usually recognised but not if taken jurisdiction in contrast with rules protecting consumers Notice 15.3 special rules on transport: o <><><><>< Art 16 is the substantive rules allowing the consumer the choice, if consumer contract under art 15: o ><><><> But counter provision not true, that counterparts got to sue consumer where domiciled see 16.2.; 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, can agree to have courts of Luxembourg decide 17.2 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 17.3 only really significant one: o . V narrow exception can see sit where all virtually resident in Germany where allowing parties where allow jurisdiction . Do the employment contract provisions apply? Articles 18-21

(6)

- notice rule son recognition DO NOT APPLY TO EMPLOYMENT CONTRACT - ART 20(5)-

- if are violated, court not do what supposed to, will not deny recognition, 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 employees cross-border operations) *C-37/00 Weber [2002] ECR I-2013 (employment carried out in several states, not quite fitting the Mulox pattern

(7) Does a Member State have exclusive jurisdiction, regardless of domicile? Article 22 (16 BC) *73/77 Sanders [1979] ECR 2328 (22.1: dispute about business goodwill covenant in lease not within article) *C-294/92 Webb [1994] ECR I-1717 (22.1: 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 (22.4: where validity of patent raised as defence to infringement claim, validity must be determined in the state where granted) (8) Is there an agreement upon choice of court, in the form specified, 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, if seised second, will not have jurisdiction until first court rules that it does not) Briggs, Agreements on Jurisdiction and Choice of Law: Chapter 7.

(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, 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)