The Gazette 1989

GAZETTE

SEPTEMBER

1989

In paragraph 15 the Court therefore refers to " t h e development of the pertinent conflict rules" as frame of reference. The law is constantly developing and the Court wants to keep abreast of these developments. In order to bring this about the Court proceeded to develop its autonomous rule of jurisdiction in Ivenel, at that time still with reference to the 1980 Convention. This autono- mous construction of rulqs of law has appeared clearly from the Shevanai judgment, in which the Court does not even bother to mention the 1980 Convention at all and limits itself in paragraph 16 to formulating very briefly and concisely the jurisdictional rule of Ivenel. b. When identifying the obligation creating jurisdiction, we have seen that in matters of labour contracts one should find out wha t the cha r ac t e r i s t ic obligation is, which in these cases, briefly said, is the obligation to perform the work; with other obligations it is the litigious ob l i ga t i on wh i ch creates jurisdiction. Or could one just envisage other contracts wh i ch are suitable to be treated like a labour contract? The Shevanai judgment leaves the door ajar for this possibility. Does the Court not hold in paragraph 16: "contracts of employment other contracts"? Could it be possible that certain contracts, not being labour contracts but showing the same peculiarities as enumerated by the Court (per- manent relationship, being placed in the framework of the organisation) fall under the same identification-regime? The answer to this question cannot easily be given but it seems that there is some room for a creative attorney acting on behalf of, for instance, a small (sub) contractor or a home- based housewife working on an hourly basis on her personal compu t er for a f ore i gn company. c. In cauda venenum: in paragraph 19 the Court, in an obiter dictum, tells us what to do in case of plurality of obligations, which do not ensue from a

labour contract. The Court teaches us, that in that case the "main obligation" is decisive for establishing jurisdiction. What could that be? Are we going to let the test of the characteristic obligation for establishing jurisdiction in via the back door? It is again the attorneys' task to put this question to the test. In our opinion there is some- thing to it to work as much as possible with the notion of "related actions" as advocated by Verheul and "take along" all separate obligations. However, in doing this the basic assumption should always be that there must be as much relationship as possible between the action and the competent Court, for example when expert evidence is to be given or witnesses are to be heard. This relation also is a principle, frequently invoked by the Court. One thing has become clear out of the above: there is still a lot of creative work for the attor- ney with an international prac- tice (and are we not all with 1992 before us?) to do in explor- ing the uncharted areas of this fascinating Convention. • (a) Author' translation. * John M. Bosnak is a Dutch Lawy & Bosnak, Arnhem, Netherlands.

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