Jurisdiction for contracts concluded on the Internet by the consumer.
[:en]What happens if one concludes a contract on the Internet, through a foreign site, and, following the conclusion, one finds problems with the contract concluded?
Which judge should I turn to? Who has jurisdiction. Read more
Internet jurisdiction? The Court of Justice gives an answer to this 'international intrigue'.
[:en]Published on 25.10.2012 a very important judgment of the Court of Justice which resolved an issue that had been open for several years. In fact, the European court was asked to decide on the possibility of an EU citizen, to be able appeal to the courts of the State in which it has its centre of interestsin order to claim compensation for the damage caused by the violation of one's rights to the person, by means of content placed on the web by a third party, via a website.
The Court was called upon to decide on two very similar issues:
- the first case had seen a German citizen, who had previously been convicted of murder and was later admitted to probation, apply to the German court for damages for content put online by an Austrian company, which infringed his personal rights;
- in the according toSimilarly, a French citizen sought an order to pay a sum of money against an English online newspaper that had published untrue information about him.
The Court of Justice, called upon to rule on these disputes, stated that there is the alternative course of action:
1. in the courts of the Member State where the person who has published the damaging content is established;
2. in the place where the injured party finds its centre of interest;
3. before the courts of any Member State on the territory of which anetworked information is accessible or has been accessible.
The judgment reasoned its decision on the basis of Article 5(3) of the Regulation (EC) 44/2001regulating, among other things, jurisdiction in the European context.
This rule, in fact, states that 'a person domiciled in one Member State may be sued in another Member State in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur. "
Very interesting this judgement and certainly not insignificant, which gives certainty in another situation of violation of personal rights in the field meta-territorial, i.e. through the use of the web platform.
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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
[:en]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.
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. Following a four-year employment relationship, the Italian principal stops production. The French agent therefore requests an indemnity equal to two years of 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 proposer, 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).
[:en]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. Following a four-year employment relationship, the Italian principal stops production. The French agent therefore requests an indemnity equal to two years of 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 proposer, 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).
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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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