International Dispute Resolution Flashcards

Vocabulary flashcards based on the provided lecture notes on international dispute resolution, covering key terms, legal concepts, and case law relevant to the course.

Tessili/Dunlop

Under Article 5(1) of the Brussels Convention, you can sue in the place where the contract was performed. This is determined by the law that governs the contract. And that law is chosen using the conflict-of-law rules of the court where the case is filed.

Car Trim/Key Safety

focusing on the distinction between contracts for the "sale of goods" and contracts for the "provision of services." —> We must look at the characteristic obligation. Delivering a product = Sale of goods. Performing work or services = Provision of services. Buyer provides most materials → likely a services contract. Supplier provides the materials → likely a sale of goods. If the supplier handles: Manufacturing, Quality control, and Compliance...and the buyer does not supply materials → it is a sale of goods under Article 5(1)(b).

If the contract does not specify the place of delivery, this is determined by the physical transfer = the final destination

Granarolo

The case that addressed whether an action for damages arising from the abrupt termination of a long-standing business relationship falls under the scope of tort, delict, or quasi-delict under Article 5(3). In this case, such a relationship falls under the contractual category. However, the court must assess such situations based on consistent evidence.

In cases where the relationship is more about distribution, where one party provides services in exchange for economic benefits, it may be classified as “provision of services”.

Alpine Investments

Established that the freedom to provide services applies even without a prior relationship between the provider and recipient. restrictions to EU Law are admissible as long as they are proportionate, meaning no other solution would have give the same kind of protection

Krombach v. Bamberski

Enforcement courts cannot review the original court’s judgment, even if based on the victim’s nationality.

Refusal of enforcement is possible if it goes against public policy. Denial of legal representation could breach fundamental rights and justify refusal under public policy.

Kolassa v. Barclays Bank

First of all, Mr. Kolassa was a consumer, and the bond was a financial product. However, no direct contractual relationship existed between him and Barclays. He purchased the bond via an intermediary. Strict interpretation: Article 15 requires a direct contract between consumer and professional. Indirect chains do not count.

For simila reasons, this is also not a contractual matter, as there is no freely assumed obligation by Barclays toward Kolassa. Barclays didn’t promise or contract directly with him. So, no contractual jurisdiction applies

The CJEU allowed Austrian jurisdiction because: The harm (financial loss) occurred in Austria, The cause of harm was the alleged misstatements or omissions in Barclays’ prospectuses, The loss was recorded in Kolassa's Austrian account, and The claim was framed as non-contractual liability, i.e., prospectus liability. Thus, there was a sufficient connection to Austria.

When can a court claim jurisdiction in tort under Article 5(3)? If the financial loss occurred in the claimant’s domicile and resulted from misleading information not arising from a contract. Austria had jurisdiction under Article 5(3) because:

1. The damage (financial loss) happened in Austria — Kolassa's Austrian account reflected the loss.

2. The wrongful act (misleading prospectus) had effects in Austria — Kolassa received and relied on that information while in Austria to make his investment.

Renault v Maxi car

Public policy must be interpreted narrowly and cannot justify the refusal of enforcement based on differing views of Community law. Public Policy refers to the national interests of an MS. It must involve a manifest breach of fundamental rights or essential law. The enforcement court cannot review the substance of a ruling (art 52)

Tacconi

Pre-contractual liability falls under “tort”, as there is no obligation freely assumed upon which a claim is based.

Owusu

Owusu, a UK national, was injured in Jamaica and brought a claim in the UK against Mr. Jackson (UK-domiciled) and several Jamaican companies. Article 2 establishes a mandatory jurisdictional rule = A person domiciled in a Contracting State must be sued there. Forum non conveniens cannot override this rule. This would only be true if it is directly provided for in the convention (which is not the case)

variussystem

What determines the place of performance in service contracts like software provision? The place where the client accesses and uses the service, not where it was developed. When we have several obligations, we must focus on the characteristic one = Here was the system to be used = a place where the customer accesses it = normally, his/her domicile (registered office in case the customer is a company)

Hrvatske Sume

Unjust enrichment claims typically arise independently of any wrongdoing or voluntary commitment and lack a causal link to a harmful act. If neither tort not contract, it defaults to general jurisdiction

Bier

Gave the notion of Mosaic jurisdiction —> which under Article 5(3) allows plaintiffs to sue in a jurisdiction either where:

1. The harmful act (Handlungsort) occurred, or

2. Where the damage (Erfolgsort) was sustained.

This notion was then expanded by Shevill to include defamation —> in each place where content was published. This was then even more enlarged by eDate, capturing online content

1. where the publisher is domiciled

2. in each MS where the content was published (local damages only)

3. victim’s center of interest (full damages)

Kronhofer

The Court of Justice of the European Union (CJEU) held that the mere fact that the claimant suffers financial loss at their domicile does not automatically grant jurisdiction under Article 5(3). Instead, the place where the damage materialised or where the harmful event that caused the damage occurred must be located at the claimant’s domicile for jurisdiction to be proper under this provision. Simply experiencing a financial loss at the claimant’s domicile—such as a reduction in assets, loss of revenue, or other economic effects—is not enough to establish jurisdiction. There must be a direct connection between the damage or the harmful act and the claimant’s domicile.

Universal Music

CJEU clarified that Article 5(3) requires a close link to the place of the harmful act, not just where financial loss is felt. Pure financial loss at a location (e.g., where the bank account is) is insufficient for jurisdiction without other strong connections. Jurisdiction lies primarily where the damaging act occurred, consistent with precedents like Kolassa. Therefore, jurisdiction was denied in locations of mere financial loss if the unlawful act happened elsewhere.

GTFlix

Removal/rectification claims are indivisible and must be brought where full jurisdiction exists.

Ingmar

Do EU agent protection laws apply if the contract chooses non-EU law? Yes; if the agent operates in the EU, EU law protections must apply. Here, UK law directly transposed EU law, Rome I applies universally, only exception to choice of law is OMPs, which must protect essential interests of an MS. Here, these protections were deemed essential and mandatory, so applicable

Unamar

choice of law can be disregarded only if mandatory provisions (of the forum) exists which are essential for national interests. Also, these provisons must ensure a greater protection as that granted by the convention and the forum’s state legislature deems them necessary to it public policy.  The law of the forum state may replace the law chosen by the parties to a commercial agency contract if the forum state's law is deemed mandatory. This applies only if the forum court finds, after detailed assessment, that the forum state's legislature deemed it essential to offer greater protection to the commercial agent than provided by the Directive.

Nikiforidis

Article 9(3) restricts the court of the forum to applying only the OMPs of the state of the forum or the state of performance

HUK COBURG

Can the emotional damage laws of the forum override foreign applicable law under Article 16 of Rome II? Only if they are overriding mandatory provisions and the case is closely linked to the forum. A fairness-based rule can only override the applicable law if the case has close ties to the forum state and the rule protects key principles that cannot be achieved by applying the foreign law

Gasser v MISSAT

Must second-seised court wait under lis pendens rule (Article 21), even with a choice-of-court clause? Yes; the second court must wait, even if the first court is slow. Principle of mutual trust

Turner

anti-suit injunction is prohibited even if the other party allegedly acts in bad faith, because this would disrupt the principle of mutual trust

Inkreal

Article 25(1) permits parties to designate a court in another Member State, even if both parties are domiciled in the same state and the contract has no other connection to the chosen forum.

What principle does the Inkreal case uphold? Party autonomy in jurisdiction choice — legal certainty and predictability are prioritized even without additional cross-border elements.

Agora SARL

Asymmetric clauses are valid under EU law, provided they are clear, foreseeable, and respect principles of legal certainty and predictability. How is substantive validity assessed in jurisdiction clauses, per Agora SARL? Under the national law of the designated court, including its conflict-of-law rules.