The Gazette 1989

SEPTEMBER

1989

GAZETTE

Article 5.1 of the Brussels Convention

result of this clarification by the Court the Dutch and the French texts of the original Brussels Convention were modified by the Accession Convention. Literally translated the Dutch text now reads ". . . . of the obligation, on which the claim is based, is performed or has to be performed". In French: " It should be noted that a litigious obligation is also the obligation, which according to the plaintiff has not been fulfilled, b. "Place of performance": this has to be established according to the rules of Private International Law as applied by the court seised. This implies that this judge first has to find out which law he would apply, should he have jurisdiction and, subsequently, whether according to this law the place of performance of the litigious obligation is within his jurisdiction. Example: should I claim, as a seller, payment of the purchase price, then payment is the litigious obligation, the form of the place where payment had to be effected is competent ex article 5.1. Should I, as a purchaser, claim annullment of the purchase agreement, on the basis of breach of contract, then delivery is the litigious obligation and the forum, where such delivery had to take place or has taken place has jurisdiction. Plurality of obligations At first glance, the problems seemed to be solved by these decisions. However, there was some reason to doubt whether the front was to remain silent. In re De Bloos, as it happened, the Court had also held: "that in case of claims for payment of additional compensation the national

The importance for day-to-day practice of the "Convention on Jurisdiction and the Enforcement of Judgments in Civil and Com- mercial matters with protocol, Brussels, September 27 1968", known as the Brussels Convention, is ever increasing, especially since the accession of the United Kingdom on January 1st, 1987. Also in that month the European Court of Justice rendered a judgment of great importance for the legal practitioner, interested in international litigation. It must be known even to beginners, that in principle a judg- ment in civil and commercial matters, given in an EEC-country can easily be enforced in another, as long as jurisdiction of the first judge is based on the Convention. Once the first judge has established his competence on the basis of the Convention, the judge of the country where the judgment has to be enforced is usually bound by it. The most important rules con- cerning jurisdiction are laid down in section I, the General Provisions, where in article 2 the forum rei is to be found, and section 2, Special Jurisdiction of which article 5 paragraph 1 wi ll be f ur t her analysed hereafter. Finally, sections 3, 4 and 5 provide for some other jurisdictional rules, which fall outside the scope of this article. Article 5.1 Before the coming into force of the Accession Convention, meant to regulate the accession of the United Kingdom and Northern Ireland, the Irish Republic and Denmark, but which also contained some material changes, there existed a disparity between texts in various languages. The text goes as follows: A person domiciled in a contracting state may, in another contracting state be sued:

1. in matters relating to a contract, in the court for the place of performance of the obligation in Question. In the French and Dutch text words similar to the ones underlined above were absent. Moreover, jurisdiction established by the performing of an obligation was thus far unknown in several convention states. The article therefore gave rise to considerable controversy. It was to be expected that the Court was soon to be seised in order to deal with this article. Obviously, it had become very popular because it is an attractive thought for a plaintiff to try and play a home game by means of this article. However, one encountered at least two pitfalls: What is meant w i th " t he obligation" (A), and what is the "place of performance" (B)? These problems are sometimes referred to as respectively the problem of identification and localisation of the obligation as meant in the article. Jurisprudence On both problems the Court handed down a judgment on October 6th 1976, the first judgments on the basis of the Brussels Convention. These judgments must have become familiar even to beginners: the twin judgments De Bloos/ Bouyer concerning pitall (A) and Tessi/i/Duniop on pitfall (B). Here follows a brief summary of the contents of the judgments, a. "The obligation" is the con- tractual obligation which is the basis of the action, the litigious obligation therefore. As the By John M. Bosnak*

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