Jurisdiction and Cross-Border: Brussels Regime

Topics: Jurisdiction, Conflict of laws, Contract Pages: 5 (1820 words) Published: February 25, 2013

In order to answer Norbert’s question concerning the point, which court has jurisdiction, we need to make sure that Brussels I applies to his case. It is clear that the undertakings between Norbert and his Argentine partners are ones of commercial matter; therefore, they fall into the material scope of Brussels I Regulation, Article 1. Next step is to look at the geographical scope of the regulation. According to article 4, the dispute is international,since the parties in the case are from England and Buenos Aires. The issue of domicile depends on whose the defendant will be in this case, namely the corner shop or Norbert himself. The former domicile, will be guided by Article 60 of the Regulation and as a legal person it will be deemed domicile at the place where it has it's statutory seat, principal place of business or central administration's; hence,as proposed in the given problem, this will be London. As to the domicile of the latter, which is guided by s.41(2) of CJJA, Norbert has to be resident in England and there should be substantial connection as well. In the problems is stated that he is the owner of shop, which supports the idea of substantial connection and that he has owned it for several years, which supports the principle of residence. Thus it is highly possible that he may be deemed domicile in England. There is no information as to whether there is a jurisdiction agreement designating given court to rule over if any dispute arises ,as to Norbert contracts with his suppliers, as stated in Article 23. Moreover article 22 does not give exclusive jurisdiction to court in a Member state, since this is contract for sale. There is no information information as to when the proceedings started in the given problem; therefore if they started before 2007, the regulation would not apply to the case according to article 66. Next step, after reassuring that Brussels I applies to Norbert's case, is to decide which court has jurisdiction to act in the given case. First we start with article 22 which deal with exclusive jurisdiction, which is not the case here; therefore we proceed to articles 8 – 21, which deal with jurisdiction in matters relating to insurance and over consumer contracts, which as well is not the case. Hence we proceed to article 23, which deals with the issue of whether there is a jurisdiction agreement designating a court where proceedings should be brought and since there is no information that suggests that one exists we proceed to article 2, where is stated that the defender must be sued in Member State where he is domiciled. Moreover in the case of Josi the ECJ clearly held that when applying the rules of jurisdiction laid down by the Convention, the only criteria that matters is, that the defendant's domicile is in contracting state. Following this I would advise Norbert not to start proceedings in London, since the court first seized still will be the one in Buenos Aires and this will lead to staying of the proceedings in London, under Article 27, until jurisdiction is transferred, which could take long time. This was affirmed in the case of Gasser where it was held, that the court second seized must stay it's proceeding. until the one first seized declares that it has no jurisdiction. The better solution of the problem for Norbert will be to go to the court in Buenos Aires and invoke incompetence, since if he only submits himself to the jurisdiction but does not object on the basis of competence, under Article 24, the court in Buenos Aires automatically receives jurisdiction and he can not contest the decision there.

Norbert may be able to obtain anti-suit injunction restraining Argentine proceedings because Argentina is not an EU Member State. In the case of Turner v Grovit it was held that injunction orders can not be issued between Member States, and in West Port Tankers banning the injunction orders is limited only to Member States. Therefore, Norbert...
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