Application of the Brussels Regulation in International Ligitation - Assignment Example

Introduction Article in Brussels Regulation indicates the scope of this regulation. It mentions that this regulation specialises in civil and commercial matter. It specifies which kind of court will deal with the case. The article 1 states that Brussels regulation does not apply to revenue, customs or administrative matters. Section 3 article 1 mentions that the Regulation applies to all the member states except Denmark. From the observation of the article 1 in Brussels Regulation and the facts of the case, it becomes clear that the case is filed under the Brussels regulation since the parties are from different states and the dispute related to commercial matters as we can see in the article 1 which mentions the scope of this regulation. 1) Advice Black Horse Ltd of the courts where the litigation might be commenced? Article 2 of the Brussels Regulation gave a general provision that gives a claimant the right to sue in a country where he is domiciled whatever his nationality is. Section 2 of Article 2 says that the rules of jurisdiction applicable to nationals of that state will be applied in such cases. Article 60 mentions that for the purpose of the Brussels Regulation, a company’s nationality will be deemed to be the state where it has its statutory seat, or central administration, or principal place of business. According to section 2 of this article means of statutory seat in England and Ireland which is the registered office or, the place of incorporation or the place under the law of which the formation took place. Special jurisdiction Article 5. This article add extra jurisdiction for the member state. In the case of sale of goods, a claimant can sue in the different state in some case one of them which mention in section 1 (b) in this article which gave jurisdiction to the place where the goods are delivered or should be delivered. From the provisions of articles 60, 34and 5.1 (B) it becomes clear that the claimant (Black Horse Ltd) has the right to sue the respondent (Wales Ltd) in three different places. (1) In England or Wales where Wales Ltd has its statutory seat. (2) In Athens which is its principal place of business. (3) In Rome where its central administration. According to article 60 also the claimant (Black Horse Ltd) has the right to sue in a special jurisdiction in Lisbon (Portugal) where the goods were delivered. 2) Would your answer be different if the contract contains the following clause regarding jurisdiction? “Any dispute arising under this contract shall be decided by the German courts” Article 23 in Brussels Regulation left its optional for the parties domiciled in member state. They have a choice as to which court or courts have jurisdiction to try and decide any dispute that may arise between the parties in connection with a particular legal relationship. But this choice is subject to certain condition. One of the conditions is that there must be an agreement to this effect between the parties. Further, according to the provisions of the regulation, this agreement must be in writing or evidenced in writing. Applying article 23 of the Brussels regulation on the fact of this case it can be said that only the German courts have jurisdiction that is the right to settle the dispute. This is so because of two reasons (1) Germany is a member state. (2) The parties have agreed in writing in their contract that German court will have jurisdiction to try and decide subject matter of disputes between them. 3) Despite the above jurisdiction clause, Black horse traders ltd files an action against Wales ltd in Athens. Wales ltd enters an appearance and raises the defence of “force majeure”. Does its appearance confer jurisdiction to the courts of Athens? Article 24 of the Brussels Regulation provides that despite of articles in the Regulation the court of the member state must have jurisdiction before the defendant enter an appearance, unless the respondent chooses not to contest the action on the point of jurisdiction. It is otherwise a presumption that by putting in an appearance by the defence without a challenge to the jurisdiction of the court will amount to waiver, whether or not there is another court invested with jurisdiction by article 22, as was decided in the Elefanten Schuh v. Jacqmain1. By the observation of the article 22 and the case of Elefanten schuh v. Jacqmain it becomes clear that since the courts of Athens is court of one of the member state, it can assume jurisdiction. The contest to jurisdiction must be made in the first session i.e. at the first stage. In this case, respondent (Wales ltd) entered an appearance and opted for the defence of “force majeure” instead of contesting the jurisdiction so its appearance confer jurisdiction to the courts of Athens. 4) Should the case be brought before English court, which law would the court apply to the substantive contractual dispute? Article 28 in Rome 1 Regulation must apply to contracts concluded after 17 December 2009. Article 1 in Rome 1 Regulation which came in force on 17th December 2009 limited the scope of this regulation in the case of conflict laws to contractual obligations in civil and commercial matters between the member states. Since all the parties involved in this case are member states and the subject is commercial matters and it is happened after 17th of December 2009, so the Rome 1 Regulation shall apply according to article 1 which is explains the scope of the Regulation. Article 4.1.(a) of Rome 1 Regulation indicates that if the applicable law has not been chosen by article 3 of this regulation and with the respect of the articles from 5 to 8 the contract will be governed according to its type. For example, sale of goods contract shall governed by the law of the country where the seller has his habitual residence. Article 19 (1). This article gives the meaning of the term habitual residence of companies which is the place of central administration. The dispute arose on 20th of December 2009 and is related to a contract of sale of goods. The place of central administration of Wales Ltd is in Italy so the law of Italy shall apply according to article 1, 4.1(a), 19(1) and 28 of Rome regulation. 5) Black Horse Traders Ltd obtained a judgment against Wales Ltd in Portugal and enforced the judgment in England. The judgment was, however, rendered in default of appearance of Wales Ltd. Advise Wales Ltd. Article 32 state that “For the purposes of this Regulation, .judgment. Means any Judgment given by a court or tribunal of a Member State, Whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the Determination of costs or expenses by an officer of the court”. The provisions of article 32 extend the meaning of the judgment by mention another kind of judgments like order or decree, so, there are no limitations like in the common law. Article 34(2) in Brussels regulation say that, the judgment shall not be recognised whether it has been given in default of appearance “where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so”. In this article it is clear that there is protection for the defendant which is, he must be served with the document and he has right to have enough time to prepare his defence2. By the consideration of articles 32 and 34 in Brussels regulation we can find that the defendant (Wales Ltd) has the right to set aside the judgment under article 34 which gave the defendant the natural justice to have an opportunity of defending himself. In addition, the defendant must consider that “the protection offered by article 34(2) is significantly reduced if a defendant is deprived of possibility of relying on the defence of insuifficient time simply by making an application for extension of time”. So, Wales Ltd should rely on the defence if they were not served with the document initiating the proceeding within sufficient time. Read More