Private International Law - Essay Example

Private International Law Part A Generally, the English courts can only assume jurisdictions basing their arguments on traditional English rules or Brussels 1 Regulation. The conflicts of interest arise due to the following reasons: The defendant in this case is from Spain. This makes him not to be a domicile member as defined in Member State Article 2. Moreover, there are no exclusive and mandatory articles. In this case, the Brussels regime fails to apply. Thus, the traditional rules and commercial dispute apply. Perhaps it is important to begin with summary of the case at hand. The Havana Company is located in Spain. According to the contract, Bratwurst GmbH was to supply 100,000 sausages; 75,000 in Spain and 25,000 in England. Bratwurst GmbH breached this agreement by producing contaminated hence inedible sausages. According to the contract, the Spanish courts would have jurisdiction in case of breach of contract. It is therefore clear that Havana did breach the agreement by opting instead for the English jurisdiction. It could be argued that because Chris has an office in London, the English jurisdiction applies in this case. This is because he is a domicile member. He rents the office not on temporary but permanent basis. In this case, English jurisdiction applies because Companies Act 2006 states that England can sue overseas companies if one of the parties in the case has offices located in England.1 The traditional rules govern foreign enterprises in this case. What is more, they are derived from Article 5(5). Companies Act 2006 also applies in this case; because Bratwurst GmbH and Havana entered into a contract, and was to sell some of their products in England; the England laws, therefore, govern the whole enterprise as well.2 The foreign company is this case has set shop in England as well, therefore the case can be determined by the English jurisdiction. Havana has the option of depending on the Companies Act. They have a right to do business in any place within the English Jurisdiction. Whether the company is legally registered in England or not, English courts have jurisdiction because Chris is involved and he has offices in London, England. An important law, CPR 6 states that whether a business takes a few days or the England is a market for the commodities produced; the English jurisdiction shall apply.3 In this case, the complainant, Havana, has lenient choices. The fact that in the original agreement the Spanish jurisdiction would apply is overridden. Naturally, English jurisdiction would have failed to apply because the complainant is not from England. However, he is allowed by law to request for an English jurisdiction. Despite the fact that both parties agreed to have a Spanish jurisdiction, the English jurisdiction still applies because the agreement was just mutual (oral). There was no written and legally binding agreement. Forum nonconvenience allows the claimant (Havana) the right to choose where he thinks it is convenient to have his case heard.4 The said principle gives the English courts, according to the traditional rule, the right to look at the evidence and the circumstance in the case. Obviously, the court favors justice, and relies on the laws of land and the laws of convenience. The question of territorial connections also comes in handy. The parties involved in this case are not totally foreign. Chris (representing Bratwurst GmbH) is from within London while Havana is located in Spain. The breach of contract in this case involves England so the English jurisdiction will without doubt apply5. The evidence is overwhelming in both England and Spain because all the sausages were contaminated. In the Bratwurst GmbH vs. Havana case, there is a clear applicable law that determines the contract in question.6 Therefore, the English courts can intervene in this case and settle the disputes. This discussion has brought into perspective all the matter that should be considered for the English jurisdiction to proceed. With the facts given and the various legal considerations, cases and views of scholars, the traditional laws and the Brussels 1 Regulation apply. The English Courts have jurisdiction because Bratwurst GmbH has presence in England due to the nature of the contract; Chris has an office in London. What is more, there was submission by Havana that the England courts could assume jurisdiction. In conclusion, the English courts are determined in offering fair and justified verdict. Bratwurst GmbH should compensate Havana for the losses and bad reputation. II My advice would be different if Havana, the claimant, had already commenced proceedings in Spain. In this case, it can be argued that both parties entered into a mutual agreement. They agreed that the Spanish courts would have jurisdiction. In this case, the Spanish courts would have to give their jurisdiction. To begin with, Spain applies Rome Convention on Contractual Obligations7. The rule they accord most significance is liberty of choice by the two parties. For instance, in this case, the parties chose Spanish jurisdiction. It is this jurisdiction that they will use. Where the parties making the contract did not make a particular choice, they allow the law of the where the parties stay to make jurisdiction. They would look at the laws governing business in the countries where the parties brokered their contract. The Rome Convention, of which Spain is party to, puts place a number of guarantees and requirements that both parties can use to determine which law applies in their conflict/dispute. The case between Bratwurst GmbH is an example of a consumer contract. The Spanish courts will allow the parties a chance to reach an amicable agreement or solution to the problem. Where they fail to reach an agreement, the courts will use the best applicable law based on the circumstances and available evidence. The laws governing consumers in the habitual residence may also have to apply in this case. Bratwurst GmbH was to supply sausages in England. The Spanish courts will have to put into perspective the English interpretation of the damage as well. Spanish jurisdiction also applies the Civil Code8. The parties involved in this case can refer to the contractual obligations of either party. What was the connection in contract in question? What were the agreements? These are some of the questions the judges would ask. Where there is no connection, the law of habitual place applies. Analyzing the case in question, 25,000 sausages were to be supplied in England. This means that the law of England would also be used. This is done for the sake of equal justice; so that both parties get fair judgment and reprieve. It is significant to note that there are special rules regarding how onerous contacts can be sealed in Spain. Spain considers the formalities and legislation of the country where a contract was signed9. After taking into considerations all factors, Spanish jurisdiction will apply the best law in dealing with the case. A key point to note, though, is that Spain and England have different interpretations of the law. However, they have to find a way of harmonizing the law and finding which law is the most applicable in dealing with Bratwurst GmbH vs. Havana case. The proceedings in Spain would majorly depend on the applicable laws in Spain and the Rome Convention10. This is because there are always different interpretations of the law. Chris would be held responsible for the breach of contract by supplying contaminated hence inedible sausages. Moreover, he would have to pay for the damages and lost profits. Part B I The English courts will assume jurisdiction because she is a citizen from England. The courts will be acting in their capacity to protect Barbara and to ensure that Bratwurst GmbH conforms to the best safety and hygienic standards of producing food. The laws governing production and supply of food will apply. The court will have to get as much evidence about the contaminations as possible11. It will investigate the business and ensure that Bratwurst GmbH is punished for the carelessness in inspecting its production chain. Barbara has a right to sue the company for negligence. They failed to observe the best standards for manufacture and distribution of foods. They will base their judgment on the traditional laws and health legislation. Here, they will be looking at Barbara as an independent claimant and not at Bratwurst GmbH in general. Barbara’s health deteriorated after consuming the contaminated sausages. She could not go to work for quite a very long time. This interfered with her ability to pay bills and provide for her family. The English courts deliberate on health and safety regulations. Part of the law that governs packaging and distribution of foods states that food manufactures must ensure that they sell safe and hygienic food substances that are not contaminated on infected.12 Where they breach this law and their products cause serious harm to consumers’ health, such companies will be held responsible; their licenses shall be withdrawn; moreover, they may be imprisoned13. Barbara falls well within this category. She is suffering from neglect of the sausage-distributor company. Their negligence has cost her losses in hospital bill and lost person-hours. It is in the interest of the government to ensure that its citizens are protected. In this regard, Barbara has the moral responsibility to sue the food manufacturing company; and the English jurisdiction has the right to protect her. II Whereas there is freedom of media and the press, writing wrong or false information about an individual or company amounts to defamation14. In this regard, Bratwurst GmbH has the right within English jurisdiction to sue Barbara and the newspaper company she works with for defamation. Perhaps is important to define defamation. Defamation refers to any statement that lowers the reputation of a person or a company. It can affect a company is several ways: customers can shift their loyalty leading to losses and damage. Investors and stakeholders may shy away from brokering business deals with the company. In this case, Bratwurst GmbH stands to suffer huge financial losses from the false comments Barbara includes inn her newspaper columns. It does not matter whether or not the publisher had good or bad intentions. What matters is that is how the readership and the public will perceive of the story. In the case of Bratwurst GmbH such comments will derail them and spoil their reputation so much so that it will not be business as usual. Companies can sue journalists and newspapers for defamation; this depends on whether they show that they are likely to suffer from losses. As it is, Bratwurst GmbH will likely suffer losses15. The English courts take matters of defamation seriously. At the same time, they allow the defendant to defend him/herself. In their defense, the defendants would point at factual errors.16 In this case, there are no factual errors as the story Barbara published is not morally responsible; it is defamatory. The allegation is widespread; it has been read in Germany, England and other parts of the world. The damage is irreversible. The English jurisdiction will apply the applicable law in looking at the following factors: How the publisher got the information Whether they used unreliable or biased sources Whether they ignored obvious sources If they exaggerated the story By suing Barbara and the newspaper company she works for, Bratwurst GmbH will be able to receive compensation. According to the English courts, this is the remedy for damages caused by defamation. Recent statistics suggests that moderate defamation cases published and attract about $50,000 to $70,000 in fines and compensations. The sausage company could get more given the wide-spread nature of the circulation of the false comments. How can damages be measured? According to the English jurisdiction, the complainant must be able to show the financial losses they underwent and the general damages such harm in reputation17. In conclusion, the appropriate advice to the company would be to assess the damage; in terms of losses, contracts lost and the general damages and sue Barbara and the Newspaper company she works for. Bibliography Briggs, The Conflict of Laws, 2013, 3rd Ed, Oxford: Clarendon Press Clarkson and Hill, 2011, The Conflict of Laws, 4th Ed, OUP Dicey and Morris, 2012, The Conflict of Laws, 15thed, Sweet and Maxwell McClean and Ruiz Abou-Nigm, Morris, 2012, The Conflict of Laws, 8thed, Sweet and Maxwell Rogerson, Collier’s, 2013, Conflict of Laws, 4thed, CUP . Read More