Jurisdiction Under Brussels I Regulation 2 - Conflict of Laws

JURISDICTION UNDER BRUSSELS REGULATION 2

Tort

In matters relating to tort, delict or quasi-delict, jurisdiction is given to the courts where the harmful occurred or may occur.

Issue 1 – Is there a contract?

• Yes, then go to Art 7(1)

• No, then go to Art 7(2)

Issue 2 – Is it a tort or delict?

• Art 7(2): in matters relating to tort, a person who is domiciled in a MS may be sued in another MS in the courts for the place where the harmful event occurred or may occur.

  • Not tort if restitution

  • Not tort if no harmful event occurred

• Rudolph Gabriel: Art 7(2) covers all liability which is not contractual

• Strict liability torts – fault is not required

Definition

• ‘Tort’ has autonomous community meaning.

• Tort covers any proceedings which

1. attempt to show liability of D;

2. but which does not involve matters relating to a contract.

• Kalfelis v Bankhaus Schroder [1988]

• English courts have diverted from this viewpoint.

• stated that unjust enrichment – which seems to be a ‘harm’ – was not ‘harmful event’.

• Kleinwort Benson v Glasgow City Council [1997]

• ECJ’s view is correct one.

• Whether event is ‘harmful’ as per Article 7(3) may be determined by national law of courts seised.

• Shevill v Presse Alliance [1996]

Place Where Harmful Event Occurred

1. Multiple Localities

• Sometimes D’s wrongful act is committed in one place, and the harm occurs in another.

• Here the ‘harmful event’ as per Art 7(3) occurs either at:

1. Place where damage occurs; or

2. Place of event giving rise to damage

• GJ Bier v Mines de Potasse d’Alsace [1976]

• Thus C may choose to sue in either jurisdiction.

• GJ Bier v Mines de Potasse d’Alsace [1976]

• Product liability - Kainz v Pandawaerke AG (2014)

  • Austrian went biking and was injured in Germany. Bicycle wasn’t properly manufactured. Wanted to bring claim in Austria, where harmful event occurred. Bike was bought in Germany

  • Held: place where harmful event occurred was where manufacturer made product (i.e. Germany).

1. Place where damage occurs

• Place in which damage occurs is place where actual harm is or would be inflicted.

• e.g. for sale of defective goods, this is place in which ‘initial damage occurs as result of normal use of product for purpose for which it was intended’

• and not place in which defective good was manufactured

• Zuid-Chemie BV [2010]

• For defamation, this is where C’s reputation is damaged by defamatory material

  • Shevill [1996]

Indirect loss

• ‘Place in which damage occurs’ does not include indirect damage

• i.e. if D caused damage in State A which results in loss for C in State B, C must sue in place where harm was inflicted on him (State A)

• and NOT where this harm resulted in loss for C (State B)

• Must be direct damage: Where harm is inflicted is not the same as place where injury is suffered (Reunion v Splietoff)

• Dumez France SA v Hessische Landesbank

  • Facts: French company suffers loss because German subsidiary becomes insolvent due to negligent advice of German bank.

  • Held: French courts have no jurisdiction under Art 7(2). Event giving rise to damage directly produces harmful effects on immediate victims (i.e. Germany), even though it is in France that claimant suffers injury.

• Marinari v Lloyds Bank

  • Facts: Italian claimant has suffered financial loss in Italy consequential upon initial damage arising from D’s refusal to return promissory notes which claimant has deposited in England.

  • Held: no jurisdiction on Italian court; England is where damage occurred.

• Dolphin Maritime & Aviation Services v Sveriges Forening

  • Claimant failed to receive payment to which he was entitled ? harm suffered

  • Therefore, where harm takes the form of failure to receive payment, harm occurs where the payment should have been made.

• Zuid Chemie v Philippos

  • Do not interpret in favour of C’s domicile or in favour of D’s domicile – interpretation is narrow.

2. Place of event giving rise to damage

• Normally easy to know where event giving rise to damage took place.

• For defamation, this is where defamatory material is published

• Shevill [1996]

Misrepresentation

• For misrepresentation, place of event giving rise to damage is place where D makes the misrepresentation

• and NOT where C hears/receives the misrepresentation.

• Domicrest v Swiss Bank [1999] (UK case)

• thus if misrepresentation is made via telephone by someone in France to someone in UK, harmful event occurs in France

• NB place in which damage occurs will still be place in which C suffers loss as a result of relying upon misrepresentation

• this usually where C hears and relies on representation

• Domicrest v Swiss Bank [1999]

2. Distinct Torts

• Where events constitute distinct torts, C may sue in every jurisdiction in which a distinct tort has occurred.

• however when suing in particular jurisdiction , C may only recover for harm caused by torts in that jurisdiction.

• Shevill v Presse Alliance [1996]

• Internet libel

• eDate Advertising v X

  • Following rules are limited to internet publishing and damage of privacy rights

• Facts: Sunday Mirror published item on English website saying Kylie Minogue and boyfriend got together.

• Held: where harmful event had occurred was:

  • Where D is domiciled or

  • Where D is established (no articulation as to difference between...