Internet law part I: the trade mark and the domain name.
[:it]To be able to enter into this topic, it is necessary to take a preliminary look at some concepts that touch on both industrial law and the customary rules of the Internet world.
First of all, it is necessary to see how the domain name is framed within theItalian system. The legislator
regulated this figure for the first time with Art. 22 of the IPC (Industrial Property Code), introducing the prohibition to adopt as "a domain name a sign which is the same as or similar to another's trade mark where, because of the identity or similarity between the proprietors of those signs and the goods or services for which the trade mark is adopted, there exists a likelihood of confusion on the part of the public which may also consist in a likelihood of association between the two signs".
The domain name, therefore, may also be relevant as a distinctive sign because in the light of the progressive 'commercialisation' of the Internet, the entrepreneur no longer uses just any domain name, but requires a specific Internet address to make the products or services offered by his commercial site identifiable to surfers.
The doctrine and jurisprudence, even before the introduction of the aforementioned definition within the c.p.i., recognised the distinctive capacity of the domain name, recognising that "it does not seem justifiably contestable that the domain name in this case also has a distinctive character of the user of the site - capable of contributing to the identification of the same and of the commercial services offered by it to the public by means of the interconnection of networks (Internet) - with some apparent affinity with the figure of the sign, as the (virtual) place where the entrepreneur contacts the customer and concludes the contract with him".[1]
This interpretation is again confirmed following the introduction of the aforementioned Article 22 IPC by a recent decision of the Court of Milan of 20 February 2009, which definitively confirms the dominant jurisprudential orientation in favour of the recognition of the distinctive nature of the domain name formed prior to the IPC.[2]
Trademark protection regulations are also flanked by the network rules. On the Internet, in fact, the principle of "first come, first served", in on the basis of which a domain name is assigned to the first applicant, regardless of whether it conflicts with the rights of others. Domain allocation bodies are not obliged to carry out any prior checks to prevent/avoid registration - such as domain name - of signs or trade marks that are confusingly similar to a registered trade mark by a person other than the owner of the distinctive sign. In other words, under the current method of allocation of domain names, all names not yet registered (such as domain name) are freely registrable by anyone on the basis of the priority of applications, regardless of whether or not those names correspond to more or less well-known names or distinctive signs of third parties.
At this point, it is necessary to analyse the actual method of application of these rules and, to do so, it is necessary to subdivide trade marks into two macro-groups, namely non-renowned and renowned marks.
(a) cases of tomorrow's trade mark with no reputation
In the first case, if the domain name is identical or similar to another person's trade mark not having a reputation, two requirements must be met in order for that person to be able to prevent the use of that domain name:
- l'identity or similarity of the mark with the domain name (e.g. the registered trade mark is ABCD s.r.l. and the third party uses a coincident domain name www.abcd.it);
- l'identity or similarity of products or services offered. (both operate in the same branch of the market);
In that case, the principle of speciality of trade mark protection provided for and regulated by Art. 2569(1) of the Civil Code will apply.[3] and Article 20 para. 1 c.p.i. (a) and (b).
Obviously, the closer the products and services on offer are, the greater the public's confusion as to where they actually come from.
Therefore, even if there is no identity between the product sectors of the non-renowned brand and the domain nameif the bad faith of the holder of the domain name, that activity is deemed to be capable of precluding the holder of the trade mark from using it on the Internet as a further distinctive sign and therefore objectionable under Article 22 of the Code of Civil Procedure. [4]
(b) cases of tomorrow name of renowned trade mark
In the case of a trade mark with a reputation or high renown, the use of a domain name similar to the trade mark shall be deemed to be undue if the use of the sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or repute of the trade mark.[5]
ABSTRACT
- the legislator, for the first time, regulated the domain name in art. 22 c.p.i. (industrial property code)
- the dominant legal orientation in favour of recognising the distinctive nature of the domain name
- in cases of domain name of an unrecognised brand name if the domain name is identical or similar to another person's trade mark, there must be identity or similarity of the trade mark with the domain name and identity or similarity of the goods or services offered in order to inhibit use of that domain name
- in cases of domain name of a renowned trade mark, it is considered undue to use the domain name similar to the trade mark also in cases of use of signs for goods and services which are not similar if the use of the sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark
[1] Court of Milan, Order of 10 June 1997 - Amadeus Marketing SA, Amadeus Marketing Italia s.r.l. c. Logica s.r.l.
[2] "The domain name has a twofold nature, technical for addressing the logical resources of the Internet network and distinctive. As a distinctive sign - constituted by the part characterising the domain name called Second Level Domain - it may come into conflict with other signs in application of the principle of the unitary nature of distinctive signs laid down by art. 22 c.p.i.". Tribunale Milano, 20.02.2009, Soc. Solatube Global Marketing Inc. and others v. Soc. Solar Proiect and others.
[3] art. 2569, para. 1. c.c.[3] "A person who has registered in the form prescribed by law a new trade mark capable of distinguishing goods or services shall have the right to use it exclusively for the goods or services for which it is registered".
[4] Court of Milan, order of 10 June 1997 "The unlawful practice of confusion known as domain grabbing consists in registering, with the Naming Authority, another person's trade mark as a domain name, for the sole purpose of appropriating the notoriety of the sign, constitutes in itself an act of infringement - censurable pursuant to art. 22 IPC - also in so far as it is an activity capable of precluding the owner of the trade mark from using it on the Internet as a further distinctive sign".
[5] Court Milan, 20.02.2009 "The unlawful practice of confusion known as domain grabbing consists in the registration, with the Naming Authority, of another person's trade mark as a domain name, for the sole purpose of appropriating the reputation of the sign, constitutes in itself an act of infringement - censurable pursuant to Article 22 of the Code of Criminal Procedure - also in so far as it is an activity capable of precluding the proprietor of the trade mark from using it on the Internet as a further distinctive sign"; Court Modena, 18.10.2005 "The assignment of a domain name (website name) corresponding to a trade mark - even if only de facto, but well known - may constitute usurpation of the sign and unfair competition in so far as it entails the immediate advantage of linking one's activity to that of the proprietor of the trade mark, taking advantage of the reputation of the sign and taking unfair advantage thereof. Moreover, the infringement of a trade mark - perpetrated by its use as the domain name of an internet site - is not precluded by the fact that that use has been authorised by the appropriate authority for the registration of domain names, nor by the fact that the proprietor of the trade mark has not previously registered the same name with that authority.".
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The contemplatio domini in contracts concluded by administrators.
[:it]It is an established principle in case law and doctrine that '.... even in the case of social representation, contemplatio domini is required, so that if the representative of a company does not use its name, the shop by the same concluded has no effect on the company itself
."[1]
Doctrine and jurisprudence agree that the statutory provision governed by Art. 1388 of the Civil Code (".contract concluded by the representative"), is also applicable by analogy with reference to organic representation, which can be configured precisely in relation to persons having the status of representative bodies of legal persons.[2]
Requirements for the contract entered into by the principal to be effective there are essentially three:
1) the contribution of representative power;
(2) the representative's action within the limits of the proxy;
(3) the circumstance that the third party is made aware by the agent himself of the fact that the contractual arrangement is referable to the principal (contemplatio domini);
It is therefore necessary that all three elements exist at the time of conclusion of the contract for the transaction to be effective vis-à-vis the principal, and if even one of these prerequisites is lacking, the transaction will be effective only vis-à-vis the principal.
Focusing on the fundamental requirement of contemplatio dominiit is necessary to emphasise that such an element performs the dual function of externalising the representative management relationship existing between the agent and the principal and of consequently making possible the imputation of the effects of the contract concluded in its name by the former.
According to authoritative case law, the spending of the principal's name in contracts subject to written form ad substantiam must be in express mode cannot be deduced solely from presumptive elements.
In such contracts, the principle that all essential elements of the contract must be apparent from the contract requires that the spending of the principal's name also result ad substantiam from the same document in which the contract is contained.[3]
ABSTRACT
- contemplatio domini is also required in the case of social representation
- in order for the contract entered into by the principal to be effective, the grant of representative authority is required, the representative's acting within the limits of the power of attorney, the contemplatio domini
- in contracts subject to written form ad substantiam the contemplatio must be expressly stated, as it cannot be deduced solely from presumed elements
[1] Civil Cassation, Sec. II, 30/03/2000, No 3903See also Civil cassation, sec. lav., 25/10/1985, no. 5271 ".If the representative of a de facto partnership does not use the name of the other partner or partners, the transaction concluded is effective only in respect of that representative, even if it relates to common interests or property;
[2] In this sense, DE NOVA, The contract, vol. X of the Treaty of Private Law, directed by P. Rescigno, Utet, Turin, 2002, p. 10;SANTORO-PASSARELLI, General Doctrines of Civil Law, Jovene, 1986 p. 288; in case law for all Cass., 18 June 1987, no. 5371, in Giur. it., 1989, I, 1, 1056
[3] "In contracts concluded by the agent, [...] where there has been no express mention of the agent's name, in which case the effects of the transaction are directly imputed to the agent even if the other contracting party has had knowledge of the agent's authority or interest in the conclusion of the transaction [...], any tacit contemplatio domini cannot be inferred from presumptions". (Civil cassation, sec. II, 12/01/2007, no. 433)
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Conference on the agency contract in the Civic Library.
[:it]Friday 8 June, 3 p.m, at the Verona Public Library conference on the Agency Contract was held, which I had the pleasure of organising in collaboration with Veronalegal. Participating as speakers were thelawyer Valerio Sangiovanni (lawyer in Milan), Dr Maura Mancini (Labour Magistrate at the Court of Brescia), Mslawyer Eve Tessera (French lawyer, registered in Verona) and the undersigned.
The following topics were covered:
- study of a agency contract (lawyer Valerio Sangiovanni)
- the termination indemnity pursuant to Article 1751 of the Civil Code (Dr Maura Mancini)
- the Agency Contract in France (Advocate Eve Tessera)
- the Agency Contract in Germany (yours truly...)
I would like to sincerely thank all the participants of the conference and the speakers who proved to be not only extremely competent, but also very clear and helpful.
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Art. 1451 of the Civil Code Enforceability against third parties of the simulated transaction.
[:en]Pursuant to theArticle 1415 of the Civil Code. simulation 'may not be relied on by the contracting parties, the successors in title or the creditors of the simulated alien, to the third parties which bona fide have acquired rights from the apparent owner."In essence, the rationale is to protect the third party vis-à-vis the parties by assigning prevalence to the trust that third partiesin good faith, have been able to place on the outward appearance of the contract.
Jurisprudence has pronounced itself on this matter by stating that "for the simulation not to be enforceable against third parties who in good faith have acquired rights from the apparent owner is necessary that the third party is the holder of a related or dependent legal situation or that in some way it can be influenced by the simulative agreement."[1]
Jurisprudence agrees that the concept of third in Article 1415 of the Civil Code must be interpreted broadly and broadly, with the view that sufficient that there is a mere connection or a simple dependency relationship between the third party's legal situation and the simulative agreement.
For example, one can read "....Article 1415 Para. (1) of the Civil Code must be interpreted as meaning that the simulation may not be opposed by the apparent owner against third-party purchasers in good faith, i.e. those who, on the basis of the simulated contract, obtain a favourable legal effect in ignorance of damaging the rights of others...."[2]
On this point, the same doctrine has expressed itself in complete agreement with the aforementioned jurisprudential orientation, stating that for third parties formerly Article 1415 of the Civil Code means all those who achieve a favourable legal effect on the basis of the simulated contract (and this responds to the general rule that one who creates an apparent negotiating situation cannot enforce the real situation against bona fide third parties.[3]
Moreover, this is nothing more than an application of the more general principle of the protection of trust "... The principle of the appearance of rights, which is linked to the more general principle of the protection of innocent expectations, may be invoked when there are objective elements capable of justifying the third party's belief as to the correspondence between the apparent situation and the real one...".[4]
As to the third party's good faith, it is briefly noted that doctrine[5] and case law[6] agree that the third party is relieved of the burden of proving it since this is presumptive in nature.
Finally, it is noted that in this matter, bad faith is identified not with the "mere science"of the simulation, but with the intention of facilitating the purpose in view of which the simulation was carried out.[7]
Therefore, the third party not only does not have the burden of proving its good faith, but it is up to the apparent holder to prove its bad faith.
- Under Art. 1415 of the Civil Code, the third party is protected with respect to the parties, the legislature having given precedence to the reliance that the third party, in good faith, has placed on the outward appearance of the contract
- In order for the simulation not to be enforceable against third parties who in good faith have acquired rights from the apparent owner, it is necessary for the third party to be the owner of a legal situation that is connected with or dependent on, or in some way affected by, the simulatory agreement
- The concept of third party in Article 1415 of the Civil Code must be interpreted broadly and broadly
- The third party is relieved of the burden of proving his good faith since this is presumptive in nature, so it is up to the apparent holder to prove his bad faith
[3] cf. M. Bianca: Civil Law - The Contract - Giuffré p. 667;
[5] Mengoni, Purchase at non-domination, 1949, 117 and later editions;
[6] Cass. 1949, no. 53; Cass. 1960, no. 1046; Cass. 1970, no. 349; Cass. 1987, no. 5143; Cass. 2002, no. 3102;
[7] Cass. 1986, no. 2004; Cass. 1991, no. 13260;
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Lawyer's fees and competent jurisdiction.
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Recently, with the ruling of the 12.10.2011 n. 2100the Supreme Court has pronounced itself by stating that "the remuneration for professional serviceswhich is not conventionally established, is a illiquid pecuniary debtto be determined according to the professional tariff; it follows that the optional hole of the place where the obligation is to be performed (Art. 20 c.p.c., second hypothesis)'should be identified, pursuant to the last paragraph of Art. 1182 c.c.in the debtor's domicile in that same
tempo".[1]
Applying this principle to a lawyer's professional activity, the practical implications of the aforementioned judgment are evident. As is well known, in fact, Art. 20 c.p.c.which regulates as an alternative forum to the general forum of the defendant (Article 18 c.p.c.). states that 'in actions relating to rights of obligation, the court of the place where [...] the obligation in question is to be performed shall also have jurisdiction".
According to the Supreme Court, therefore, if it is not established "ab origine"The parties are entitled to the payment of the remuneration of a professional, the claim cannot be characterised as liquid since it can only be determined once the service has been rendered. Therefore, Article 1182 para. 3 of the Civil Code, which provides that ".the obligation relating to a sum of money must be performed at the domicile of the creditor at the time it is due. "
Given the non-liquid and determinable nature of the claim should instead be applied, according to the Supreme Court Article 1182 last paragraphwhich provides instead for performance of the obligation at the debtor's domicile.
This principle is clearly also applicable to the profession of lawyer. In fact, its remuneration most of the time cannot be determined in advance, especially if it concerns judicial activity, since it is not possible to foresee the actual activity to be performed in the course of the proceedings. Therefore, according to this orientation of the Supreme Court, should a lawyer proceed to recover a debt arising from his own professional activity, he will have to act at the defendant's forum ex Art. 18 c.p.c. or of the debtor ex art 20 c.p.c.
ABSTRACT
- Remuneration for professional services, which is not agreed upon, is an illiquid pecuniary debt, to be determined according to the professional tariff
- The optional forum of the place where the obligation is to be performed (Art. 20 c.p.c.) is to be identified, pursuant to the last paragraph of Art. 1182 c.c., in the domicile of the debtor
- A lawyer wishing to proceed for the recovery of his own claim must act either at the defendant's court pursuant to art. 18 c.p.c. or at the debtor's court pursuant to art. 20 c.p.c..
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Jurisdiction in the international sale of movable property.
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Often the parties, who enter into an international contract of sale of movable goods, omit for various reasons to decide and define which court is competent to decide on a possible dispute concerning the contract itself.
In the absence of such a choice, it is necessary to identify the parameters dictated by the Regulation 44/2001. The same provides that:
- the court where the defendant has its residence is competent to decide (Art. 2.1);
- "a person domiciled in the territory of a Member State may be sued in another Member State" and specifically, in the case of the sale of goods, "the place, situated in a Member State, where the goods were delivered or should have been delivered under the contract" (Art. 5.1(b)).
E.g. An Italian company sells goods to a Swedish company. The parties agree that the goods are to be delivered to a dealer based in Spain. The Swedish company delivers the goods on time, but the Swedish company fails to perform.
The Swedish company wants to take legal action and turned to a lawyer for clarification.
Ex .art 2,1 reg. 44/2001 in this case (in the absence of choice of the parties) the competent jurisdiction is that of the defendant, i.e. the Swedish Jurisdiction.
In any case, theArticle 5.1(b) provides as a special forum, in the alternative, the court of the place where the goods were delivered or should have been delivered (Spain).
Therefore, the Italian seller (to his surprise) will have no right of action in Italy to demand payment for his goods.
It is important to emphasise that according to a United Sections of the Supreme Courtthis principle is also applicable where the seller intends to sue for the mere payment of the consideration.
On this point, the Supreme Court stated that 'on the subject of the international sale of goods, Article 5(1)(b) of the EC Regulation No. 44/2001 of 22 December 2000, is to be interpreted as meaning that, in contracts of sale, the obligation relied on in the action is to be understood as meaning not the obligation relied on by the plaintiff but the obligation characterising the contract and, therefore, in contracts for the sale of goods, that of delivery of the goods; Therefore, even in the case of an action relating to the mere payment of the consideration, the place to be considered, for the purposes of jurisdiction, is the place of delivery of the goods, which, if not established in the contract, will have to be identified with reference to the principles already affirmed by the ECJ, the place being determined according to the conflict rules of the court seised."[1]
ABSTRACT
in the absence of choice it is competent to adjudicate also on questions concerning the payment of consideration:
- the court where the defendant has his residence (Art. 2. reg. 44/2001)
- the court where the goods were to be delivered (Art. 5 reg. 44/2001)
- even in the case of an action relating to the mere payment of consideration, the place to be considered, for the purposes of jurisdiction, is the place of delivery of the goods
[1] Civil Cassation 2009 No. 3059 Giust. civ. Mass. 2009, 3, 479
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Choice or non-choice of applicable law
One of the first steps in drafting an international contract is choice of applicable law. Only after such an assessment can a contract be correctly drafted, as only in this way can the parties draft a contract on the basis of the normative dictates of the chosen legal system.
This element is often 'snubbed' or put in second place.
plan by the uninitiated, believing this to be a mere formality.
Usually, parties wishing to start a collaboration in the international sphere insert into a contract what they usually insert into national contracts, sometimes using contracts they have already used to regulate national relations.
In reality, a lack of choice can lead to unpleasant surprises on the part of one or more contractors.
Case 1
For ease of understanding, it is considered necessary to give two classic examples of problems related precisely to a failure to choose the applicable law.
An Italian principal enters into an agency contract with a French promoter. The parties do not choose the applicable law, as they consider it to be entirely superfluous. After an employment relationship of four years, the Italian principal stops production. The French agent therefore requests an indemnity equal to two years' commissions, based on the rules of French law. In this case, in the absence of choice, the agent's law, i.e. French law, applies. The principal, following a discussion with his lawyer, realises that under Italian law the severance payment is much lower (ex Article 1751 of the Civil Code "the amount of the allowance may not exceed a figure equivalent to an annual allowance...) .
Case 2
An Italian company enters into a contract for the supply of goods with an American company. Nothing is specified in the contract as to the applicable law. In addition, a penalty clause is stipulated that obliges the American seller to pay a penalty of € 10,000.00 in case of delay in delivery of the goods. The goods are shipped more than a month late and yet the American company does not want to fulfil the penalty payment. The company turns to a lawyer to ask for clarification of the coercive methods of payment. To the client's surprise, the lawyer explains to him that the situation varies greatly depending on the applicable law. In fact, the penalty clause is valid unless the court reduces the amount if it is manifestly excessive (Article 1384 of the Civil Code.). In contrast, American law does not provide for the possibility of stipulating penalties (penalty), but only forms of lump-sum fixing of damages (liquidated damages).
One of the first steps in drafting an international contract is choice of applicable law. Only after such an assessment can a contract be correctly drafted, as only in this way can the parties draft a contract on the basis of the normative dictates of the chosen legal system.
This element is often 'snubbed' or put in second place.
plan by the uninitiated, believing this to be a mere formality.
Usually, parties wishing to start a collaboration in the international sphere insert into a contract what they usually insert into national contracts, sometimes using contracts they have already used to regulate national relations.
In reality, a lack of choice can lead to unpleasant surprises on the part of one or more contractors.
The legal nature of the associated firm in Italy.
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It is now well known that associated law firms are, in fact, without their own legal personalityfalling, according to case law, "toWithin those phenomena of aggregation of interests to which the law attributes the ability to act as autonomous centres of imputation of relations legal,munites of legal representation in accordance with the rules laid down in Article 36 et seq. of the Civil Code."[1]
In bankruptcythis characteristic is highly relevant. In fact, according to a constant orientation of the Supreme Court of Cassation, the associated studios have legal representation, do not claim any privileges when it comes to admission to the liabilities in bankruptcy. For the Supreme Court, the firm is not, in fact, assimilated to the individual subject favoured by the'Article 2751 bis n. 2., this right being insusceptible of analogical extension.
A possible solution to this problem would be the assignment of the claim arising out of the services rendered personally by the individual lawyer to the law firm. This condition, however, must in any event be attached and proven, since it cannot be considered, in the abstract, as a legal or natural effect of the lawyer's participation in the firm, an autonomous centre of interests.[2]
ABSTRACT
the associated Italian firm:
- is a phenomenon of aggregation of interests without legal personality, but with legal representation;
- in bankruptcy does not enjoy the privilege of Article 2751a(2)
- an assignment of the claim arising out of services rendered personally by the individual lawyer is still possible
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The Rome I Regulation and the applicable law.
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If the parties do not identify the law to which the contractual relationship is subjectthe linking criteria provided for in Article 4 of the Rome I Regulation (593/2008)
Specifically theArticle 4.1 unequivocally identifies which law is to be applied to a series of contracts where the parties have not made the choice (sale, provision of services, franchising, distribution). It reads, in fact, that:
-
a contract for the sale of goods is governed by the law of the country in which the seller has his habitual residence;
-
the contract for the provision of services is governed by the law of the country in which the service provider has his habitual residence;
-
a contract having as its object a right in rem in immovable property or a lease of immovable property is governed by the law of the country in which the property is situated;
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Notwithstanding (c), the letting of a property concluded for temporary private use for a period of not more than six consecutive months shall be governed by the law of the country in which the owner has his habitual residence, provided that the tenant is a natural person and has his habitual residence in the same country;
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The franchise contract is governed by the law of the country in which the franchisee has its habitual residence;
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the distribution contract is governed by the law of the country in which the distributor has his habitual residence;
LArticle 4.2 of the RegulationIt further provides that if the contract does not fall within the categories set forth in Art. 4.1 it shall be governed by the law of the country in which the party to be performed under the contract has its habitual residence;
L'Article 4.3Finally, it provides that if none of these criteria makes it possible to determine the applicable law, the contract shall be governed by the law of the country with which it is most closely connected.
ABSTRACT
In case of no choice check:
- whether the contract falls within the categories covered by Art. 4(1) of the Rome I Regulation
- otherwise, the law in which the party is to perform the characteristic performance applies
- finally, if none of the above criteria allows the determination of the applicable law, the contract is the law of the country with which it is most closely connected
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Jurisdiction under EC Reg. 44/2001.
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A problem that often arises in connection with contracts concluded by parties with residence or seat in different states concerns the choice of jurisdiction, i.e. figuring out which court is called upon to rule when the parties have not explicitly made that choice.
In civil and commercial matters between an Italian subject and a foreigner, one must firstly
distinguish, relations with counterparties in the European area and counterparties in countries outside that area.
- In the first case, the European legislation governed by the Regulation 44/2001 (Lugano Convention)
- In the second case, on the other hand, the general regime of the Act No. 218/1995 on Private International Lawunless the matter is directly regulated by bilateral conventions of the countries in question.
Analysing briefly the general discipline provided for by the European regulation, it is noted that it is provided for in theArticle 2.1 the general rule of jurisdiction of the defendant's court.
Based on this principle, therefore, in the absence of choice, if one of the parties is domiciled in an EU state, it must be sued in the court of that state.
(e.g. Italian plaintiff, Spanish defendant, but domiciled in Belgium, the contracting court is Belgian)
However, Regulation 44/2001 provides in Articles 5, 6 and 22 of the exemptions to this general principle or:
- Articles 5 and 6 reg. allow in a number of cases to sue a person before courts other than those of the domicile;
- Article 22 provides for a number of exclusive, i.e. non-derogable, forums, irrespective of the domicile of the defendant, such as rights in rem in immovable property, validity, nullity and dissolution of companies, registration and validity of patents and designs;
- the parties are nevertheless free to choose an exclusive forum by means of a clause extending jurisdiction (Art. 23).
ABSTRACT
In the absence of choice and if the relationship is between parties in the European judicial area, which State's courts are called upon to decide a dispute?
- Need to look at reg. 44/2001
- Article 2.1 of Regulation 44/2001 regulates the general principle of the jurisdiction of the defendant's court
- Articles 5 and 6 reg. allow in a number of cases to sue a person before courts other than those of domicile
- Article 22 provides for a series of exclusive, i.e. non-derogable, forums, regardless of the domicile of the defendant
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