296 / 482
GAZETTE
SEPTEMBER
1989
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
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
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