The Gazette 1989

SEPTEMBER

1989

GAZETTE

However, the Court adds some- thing extra: it is now even so that whenever there is question of single obligations ensuing from a labour contract subject to a procedure ex article 5.1., one should no longer look at the obligation on which the action is based when localising the place of performance (for example payment of salary) but to the place where the labour is performed. For the Court men t i oned in paragraph 16 questions of law ensuing from one or more obligations, founded on these contracts. How to tackle article 5.17 From the jurisprudence men- tioned above we can now distill the following scheme in order to test a case on the basis of article 5.1. (whenever parties have not them- selves agreed upon the place of performance of the obligation in question). 1. Identification. Jurisdiction of the Court seised is determined: a. with labour contracts: by establishing the place where the labour is performed (pro- ceed to 3). b. with other contracts: I. with single obligations: by establishing the obligation on which the action is based (proceed to 2). II. w i t h plurality of obligations: by establishing which obligation is the "ma in obligation". The place of performance of this obligation determines jurisdiction. 2. Localisation. Once the relevant obligation is found, the Court seised must then by means of its own private international law determine the place of performance. 3. Dacision If the labour is not performed within the jurisdiction of the court seised or if the obligation in question is not to be localised there, the Court denies jurisdiction: - i n default cases (article 20 of the Brussels Convention); - w h en the defendant entered appearance solely to contest the jurisdiction.

jurisdiction of the Courts and the aim of the Convention was to reduce such uncertainties. 18. In contrast, such uncertainty does not exist in relation to contracts in general if the obligation which is laid down in the con t r act and the performance of which is sought in the Court proceedings is the only obligation taken into consideration. Normally the place where the obligation is to be performed constitutes the closest connec t i ng factor between the dispute and the Court with jurisdiction; it is on the ground of that factor that, in ma t t ers relating to a con t r ac t, the place of performance of the obligations is the forum for disputes. 19. It is true that this rule does not give a solution whenever an action relates to several obligations arising under the same contract and serving as the basis for the proceedings brought by the plaintiff. How- ever, in these cases the Court must determine its jurisdiction according to the principle that secondary obligations follow the main obligations: that is to say that the main obligation will determine jurisdiction where there are several obligations at issue. That was not, however, the position in the question referred by the Landgericht. The Court ruled as follows: "For the purpose of deter- mining the place of perform- ance within the meaning of article 5 (1) of the Convention of 27 September 1968 on Jurisdiction and the Enforce- ment of Judgments in Civil and Commercial Matters, the obligation to be taken into consideration in an action for the recovery of fees, com- menced by an architect com- missioned to prepare plains for the building of houses, is the contractual obligation actually forming the basis of the legal proceedings". With these arguments the case has been settled in favour of those who had held the opinion that the test of the obligation characterising the contract was only to be applied in cases, ensuing from labour contracts.

Those who have read this article out of pure necessity may now opt out. The part which is most important for day-to-day practice is now finished. However, for those who, on the contrary, had their appetites whetted, we continue. I I I . For tha connoisseurs In what we have discussed above, not all questions have been answered, whereas new questions have appeared. Examples: a. why does the Court, in Ivenel, refer to the Rome Convention of 1980 on the law applicable to contractual obligations and does not do so anymore in Shenavai? b. is the test as outlined in Ivenel and Shenavai exclusively applic- able to labour contracts or maybe also for other types of contracts? c. what exactly does the Court mean with "main obligation" (Shenavai, paragraph 19) when there is plurality of litigious obligations? a. The Ivenel judgment has met with violent criticism. Authors have reproached the Court that it has incorrectly used the Convention of Rome of 1980. According to us the Convent- ion has not been invoked by the Court in order to identify and localise the obligation in question, but only in order to give better motivation to the i n t r oduc t i on of its self- developed jurisdiction rule, exclusively for labour relationships. In order to establish a special rule to protect the weaker party the Court not only finds general principles within the context of the Convention, but also among the principles which form the basis of the Convention of Rome. Apparently the Court wanted to use this kind of argument in order to defend itself beforehand against critics that would point out to the wordings of the " f ound i ng fathers" of the Convention as laid down in the Jenard report who, at that time, did not (yet) wanted to create a special regime for employment relation- ships.

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