The Gazette 1985

GAZETTE

SEPTEMBER1985

Article 6 deals with co-defendants, third party claims

and counterclaims and allows a defendant to be sued

where any of his co-defendants are domiciled, a third

party to be sued in the courts seized of the original pro-

ceedings and allows a counterclaim to be brought in the

courts dealing with the original claim. Article 6(a) was

inserted by the 1978 Convention to provide that a court

exercising jurisdiction under the Convention in actions

arising from the use or operation of a ship would also

have jurisdiction in claims for the limitation of such

liability.

Jurisdiction in Particular Insurance Claims

Articles 7-12 deal with jurisdiction in matters relating

to insurance. The basic rule is in Article 8 which pro-

vides that an insurer domiciled in a Contracting State

may be sued in the courts of that State or in the courts

of the State where the policyholder is domiciled or, in

the case of a co-insurer, in the courts of the State in

which proceedings are being brought against the leading

insurer. The intention of this and subsequent Articles

relating to insurance is to try to protect the insured's

interests, mainly by giving him a greater choice of juris-

diction. The 1978 Convention made slight amendments

to the insurance provisions in relation to ship and air-

craft insurance and in relation to certain larger

insurance claims where certain policyholders are not in

need of protection.

Jurisdiction in Consumer Contracts

Articles 13-15 of the Convention were fully replaced

in the 1978 Convention. Basically, in relation to certain

types of consumer contracts, the new provisions allow a

consumer to bring proceedings in the country of his own

domicile and oblige the plaintiff in actions against a

consumer to bring the proceedings in the country of this

customer's domicile. (The consumer contracts covered

by this section relate essentially to sales where the price

is payable in instalments or where the sale is contract-

ually linked to a loan.)

Exclusive Jurisdiction

Article 16 grants exclusive jurisdiction to certain

courts in certain circumstances. The stipulation in Article

16 that a specified court will have exclusive jurisdiction

will be effective regardless of the domicile of the def-

endant and even where the parties have purported to

choose an alternative forum.

The exclusive jurisdiction laid down in Article 16(1) is

more important and provides that in proceedings which

have as their object rights

in rem

in, or tenancies of

immoveable property, the courts of the Contracting

State in which the property is situated will have

exclusive jurisdiction. Some problems may arise in the

common law jurisdiction in deciding exactly what con-

stitutes rights

in rem

for the purposes of Article 16,

particularly because of the distinction between legal and

equitable rights in property. The main reason why the

matter of tenancies was included was stated to be

because tenancies are normally governed by special and

complex national legislation which should preferrably

be applied by the courts of the country in which it is in

force.

And, its inclusion was stated to cover disputes

between landlord and tenant over the existence or

interpretation of tenancy agreements, compensation for

damage caused by the tenant, eviction, etc.

The recent

case of

Rosier

-v-

Rotlwinkle

dealt with the point.

The Court held that Article 16(1) applied to all agree-

ments for a tenancy of immoveable property, even

those for limited periods and those relating to holiday

homes. The Court specifically held that disputes con-

cerning the obligations of the parties and, in particular,

those concerning the existence or the interpretation of

such obligations, the duration of the agreement, the

delivery up of possession, the repair of damage caused

by the tenant, or the.recovery of rent or other supple-

mental charges, are within the exclusive jurisdiction of

Article 16(1). However, the Court concluded, disputes

concerning, only indirectly, the use of the property let,

such as those concerning lost holiday enjoyment or

travel expenses, do not come within that jurisdiction.

The Court of Justice interpreted Article 16(1) in

Sanders

-v-

Van der Putted

A Dutch national took a

lease of a premises in Germany in which he ran a

business. Another Dutch national agreed to take over

and run the business at a monthly rent. The Court of

Justice held that the particular agreement did not come

within the scope of Article 16(1) as it was primarily

concerned with the running of a business.

Other areas of exclusive jurisdiction covered by

Article 16 include proceedings relating to the validity of

the constitution, nullity or dissolution of companies, the

validity of entries in public registers, the validity of

patents, trademarks and similar rights

and proceedings

concerning the enforcement of judgements.

K SECURITY PRIVATE

INVESTIGATIONS LTD.

Founded 1947

Internationally represented in 40 countries.

OUR SERVICES INCLUDE

• Matrimonial/Domestic investigations.

• Insurance Claims.

• Employment Tribunal/Industrial Relations

Employer/Employee.

• Fraud, Internal Theft.

• Copyright/Patent/Trade mark. Infringement.

• Commercial, Civil, Criminal, Plaintiff/Defence

• Trace Investigations

• Surveillance, Under Cover Agents.

• electronic Sweeping (Removal only).

• Hand-writing analysis.

• General investigations under P.I.L.

Fully Experienced Investigators conversant

with all aspects of Court Attendance,

Evidence etc.

RICHMOND CHAMBERS,

101 RICHMOND ROAD,

DUBLIN 3.

Tel 360124/5 - 371906

(Incorporating Summons Servers Ltd.)

334