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.

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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