The Gazette 1989

SEPTEMBER

1989

GAZETTE

action" is instituted solely with the object of removing the defendant from the jurisdiction of the court which would be competent in his case, a situation which article 6.2. tries to prevent in case of a dubious action on a warrant. However, one could object against this way of dealing with the matter because it tends to be a "plaintiff's solution", encouraging forum-shopping. In the twilight zone between real related actions and its abuse the defendant's protection might well become an illusion. The Court therefore has not opted for this solution, but has introduced in a new judgment its own, separaté rule for identification and localisation of the obligation on wh i ch the action is based, especially in those cases when defendants need that protection most. Ivenel/Schwab This judgment exactly focused on the problem, wh i ch is " t h e obligation in question", when there is plurality of litigious obligations. However, it should immediately be adde'd that in this judgment the judge of the facts had qualified the contract, from which the various obligations ensued, as an employment contract, so this was what the Court had to base itself upon. In such a matter, the Court held, it should be established which of the obligations characterised the contract in question. In matters of labour con t r ac ts t h is is the performance of labour. If one simplifies the judgment, it could be said that wherever the labour is performed, the Court has jurisdiction. A controversy between the learned authors ensued. Some thought that the criteria established in De Bloos were overruled and that from now on one shold see which was the obligation characterised in the contract. Others however had doubts and pointed out the fact that the Court explicitly based its decision on plurality in cases of employment contracts. This seems a more realistic approach, also because the judgment is entirely tailored to the s i t ua t i on of employment contracts. In the latter opinion therefore the problem still has not been solved in cases of plurality of autonomous obligations

ensuing from contracts other than labour contracts. If beginners can understand this, they can consider themselves advanced students. They are ripe for the second part of this story. 11. For (somewhat advanced students and those who already knew the above). Shenavai/Kreischer. Case Shenavai, architect at Rocken- hausen, FRG, summonsed his client, Kreischer (domiciled in the Netherlands) before the Amtsgericht Rochenhausen. Kreischer had not paid Shenavai's fees for designing three holiday houses in the neighbourhood of Rockenhausen. Kreischer contested the jurisdiction of the Amtsgericht stating that the place where the obligation in question had to be performed (payment of the architects fees) according to German Private International Law was at the client's domicile in the Netherlands. There- fore Rockenhausen was not the place where the litigious obligation had to be performed, which meant that this Amtsgericht had no jurisdiction. The Amt sge r i cht Rockenhausen followed this argu- ment and held that it had no jurisdiction. Shenavai appealed wi th the Landgericht Kaiserslautern. The Court holds: (a) 4 + 5 4. * * Initially the Landgericht took the view that according to German law the place of per- formance of a contract for architectural work is the place where the architect has his practice and the site of the future building. The place of perform- ance of all obligations arising under the contract was the "focal point" of the contractual relationship as a whole. ("Demgemáss befinde sich der Erfullungsort fur alle Verpflicht- ungen aus dem Vertrag dort, wo der "Schwe r punk t" des gesamten Vertragsverháltnisses liege.") 5. The Landgericht, however, added that it was hesitant, whether this interpretation was to be followed in cases concerning article 5 (1) of the Convention, because of the fact that certain rulings of the Court had based international jurisdiction on the place of

court has to investigate whether according to the law applicable to the contract there is question of an autonomous contractual obligation or of an obligation taking the place of an obligation which has not been fulfilled" (a). What then has to happen with such an obligation? Does the judge declare himself competent in such a case as far as the "Litigious obligation" is at stake, and denies jurisdiction for other "autonomous obligations" as far as these are not performed within his jurisdiction? This would be at variance with the principle of concentration of obliga- tions from one contract before one court, a principle which the Court of Justice had professed in the same judgment (and, for that matter, also in other judgments): "that, according to the preamble, the purpose of the Convention is to establish jurisdiction of the courts of the contracting states within an international framework, to facilitate the recognition of judgments and, in order to assure its enforcemerit, to introduce a swift procedure" (a). Of course, referring several obligations based on the same contract to different courts is contrary to this philosophy. In fact the question is what should be done when there is plurality of "litigious" obligations, which should, each of them, be performed in another jurisdiction. Verheul, a prominent author, remarks that in cases of plurality the Court can assume jurisdiction over claims, based on other litigious obligations, which, in fact, do not belong within his jurisdiction, as long as the actions are related. The notion of related actions is elaborated in article 22 paragraph 3, which states: "for the purposes of this article, actions are deemed to be related when they 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". This seems a good solution, charming in its simplicity. A court seised will, indeed, have no trouble to find actions to be related. Should this not be the case, then it is reasonable to deny jurisdiction over the obligation which has nothing to do with the others. This could be the matter when the "additional

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