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Jurisdiction Under Brussels I Regulation 1 Cases

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JURISDICTION UNDER BRUSSELS I REGULATION (PART 1) Article 1 'Civil and commercial matters' Verein fur Konsumenteninformation v Henkel [2002]
C, Austrian consumer protection body (VFK), brought proceedings under Brussels Convention against D, a German national; C believed there were unfair contract terms in contracts concluded between D and Austrian nationals. Was argued that Brussels Convention did not apply, as the VFK was exercising a public law power - and Article 1 of BC states that Convention only applies to 'civil and commercial matters'. Held:?Actions between a public body and a private person only fall outside of BC insofar as public body is exercising public law functions.
? However this irrelevant anyway as VFK is a private body. In addition, subject matter of action is private.
? Contracts being challenged are creature of private law.
? Thus the action simply seeks to make relationships governed by private law subject to review under Convention. Therefore subject matter of proceedings is civil, and Brussels Convention applies.

Preservatrice Fonciere TIARD v Netherlands [2003]
Netherlands sought to enforce a guarantee which C, a private company, had made in favour of the Netherlands. C claimed Netherlands did not have jurisdiction, as the subject matter of proceedings was not 'civil or commercial' as per Article 1 of Brussels Convention. Held:?

A claim by State for breach of a private law obligation falls under Convention insofar as it does not entail an exercise of powers by State going beyond that existing under rules governing private law relations. Hence fact that guarantee was made in favour of State does not matter, provided it was freely given under relevant rules applicable to private contracts.

Bankruptcy Ashurst v Pollard [2001]
D was a bankrupt; claimed that the Portuguese courts had exclusive jurisdiction over an application by his trustee in bankruptcy to sell D's property in Portugal. C argued that i) Article 1 applied, which stated that 'bankruptcy proceedings' are exempt from Convention's provisions ii) Article 22 applied Held:?

The application was not caught by Article 1 of the Convention.
? This because bankruptcy was not the 'principal subject matter of proceedings'
? Rather the main subject of proceedings was the legality of application by trustee in bankruptcy to obtain permission to sell D's property. D could not rely upon Article 22.
? D was not trying to claim he enjoyed rights in the property enforceable against the whole world
- But rather he was only trying to assert rights against the claimant.
? Therefore trustee's application was a claim in personam

Arbitration Marc Rich [1991]
Proceedings were undertaken for the appointment of an arbitrator. D alleged that arbitration clause was invalid, and that a dispute as to existence or validity of an arbitration clause fell within the Convention; and that as validity of arbitration clause was a preliminary issue to case, entire case fell within Convention. Held:?In order to determine whether a dispute fall within Convention, is necessary to look solely at the subject-matter of dispute. Here, subject-matter of dispute falls outside Convention (as it is to do with arbitration)
? thus as this is case, existence of a preliminary issue which possibly falls within Convention does not suffice to bring entire proceedings within Convention Can be inferred from this that if subject-matter of proceedings were within Convention, fact that D alleges proceedings have been brought in breach of arbitration agreement is irrelevant.

Van Uden [1998] (ECJ) C initiated arbitration proceedings (as per clause in contract) against D for non-payment; however also applied for interim relief in Dutch courts on grounds that D was delaying appointment of arbitrators and non-payment by D was disrupting C's cash flow. Held:?

For Article 31, subject matter of proceedings on merits are irrelevant.
? i.e. is only the goal of the requested interim measures which is relevant for determining whether case falls under BIR I.e. provided subject-matter of interim measures sought fall in BIR, Art 31 may be invoked

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