Alba Kalayci-Nicault
SNR: 2036559
Conflict of Laws Exam
02/06/2022
Conflict of Laws Final Exam
PART A – Holidays injury (30 points)
Rhinny Rt. is a company which is incorporated under Hungarian law and has its
principal place of business in the Hungarian capital of Budapest. In addition, it has an
establishment in China, where Rhinny Rt.’s tablets are manufactured, and an establishment
in Poland. Rhinny Rt. markets its products in Hungary, Poland and the Czech Republic.
On 30 June 2021, Maria Smidt, who lives with her family in the city of Berlin (Germany),
buys a tablet in a shop in Krakow (Poland). In July 2021, she goes with her husband and
children on a caravan holiday at Lake Garda in Italy and they take the tablet with them. On
31 July 2021 in the afternoon, Maria’s son, Johann Smidt, turns on the tablet to play Forge of
Empires when suddenly the device catches fire. The flame and heat seriously burns Johann’s
legs and hands. Johann is taken to the hospital in Verona (Italy) where he has to stay for
several weeks. Maria Smidt wants to bring a damages claim against Rhinny Rt., arguing that
the flame was caused by a defect of the tablet.
Question 1 (10 points)
Which court(s) will have jurisdiction with regard to Johann’s claim?
Question 1 (10 points) – AWARDED 8/10
There are international facts in the case as the tablet which hurt Johann was manufactured by
Hungarian company Rhinny Rt. in China and it was purchased in Poland while the harm
happened in Italy. The characterization is a damages claim due to a defective product. The
PIL question in this case concerns jurisdiction. The source to determine which court has
jurisdiction is the Brussels I-bis Regulation.
The substantive scope of the regulation is in Article 1. The regulation applies to civil and
commercial matters. This case falls within this scope and does not fall within the exceptions
listed in article 1(2). The geographical scope is in article 4. According to this article, the
defendant must be domiciled in an EU member state (MS). The defendant in this case is a
legal person and thus domicile must be determined in accordance with article 63 of the
regulation. Rhinny Rt has its principal place of business in Hungary, an EU MS, and thus the
geographical scope is met. The temporal scope is in articles 66 and 81. The regulation applies
to any proceedings commenced after the 10th of January 2015, which is also met in this case.
There is no issue of concurrence here as Brussels I-bis is the only regulation applicable. The
first step to determine which court has jurisdiction is if any court has exclusive jurisdiction
under article 24. This article does not apply in this case as it is about issues of immovable
property. Article 25 does not apply either as there is no choice of court. The next step is to
check if there are any special rules for weaker party protection. Consumer contracts fall
within this section. According to article 17(1)(c), when a contract is concluded between a
consumer and a person who pursues commercial or professional activities in the MS of the
consumer’s domicile or directs activity to that member state, it falls within the scope of this
section. The domicile of the consumer, Johann, is Germany. Rhinny Rt however does not
direct activities to Germany as the product is marketed in Hungary, Poland, and the Czech
, Alba Kalayci-Nicault
SNR: 2036559
Conflict of Laws Exam
02/06/2022
Republic. Therefore, this section would not be applicable to this case to determine which
court will have jurisdiction.
The next step is to apply the main rule in article 4. According to 4(1), persons domiciled in a
MS shall be sued in the courts of that MS. Following this, the Hungarian court would have
jurisdiction regarding Johann’s claim. Article 7 has alternative jurisdiction rules. Specifically,
article 7(2), which states that in matters relating to tort, the courts for the place where the
harmful event occurred has jurisdiction. In this case, the harmful event occurred in Italy and
therefore the Italian court also has jurisdiction. Hence, both the Hungarian and Italian courts
have jurisdiction.
Question 2 (10 points)
Assume for this question that the Hungarian court has jurisdiction. Which law will the
Hungarian court hold applicable to the claim?
Question 2 (10 points) – AWARDED 9/10
There are international facts in this case as the Hungarian court has jurisdiction, but the
parties domiciled in Hungary and Germany, the product was purchased in Poland, and the
harm occurred in Italy. The characterization of the claim is a damages claim due a defective
product. The PIL question in this case is applicable law. The sources to determine the
applicable law that the Hungarian court will apply are the Hague Product Liability
Convention (HPLC) and the Rome II Regulation.
According to article 28 of Rome II, the HPLC takes precedence over Rome II and thus the
scopes of the HPLC will be looked at first. For the HPLC to be applicable, Hungary must be
a contracting state to this convention as it is the court seized. However, Hungary is not a
contracting state to the HPLC and therefore Rome II will be applicable.
The substantive scope of Rome II is in article 1. The regulation determines the applicable law
for non-contractual obligations in civil and commercial matters. The interpretation of what
classifies as a non-contractual obligation must be in line with Rome I and Brussels I-bis. The
CJEU in Kalfelis (Case 189/87) stated that all actions which seek to establish a defendant’s
liability not relation to a ‘contract’ within the meaning of 7(1) Brussels I-bis. Therefore, this
case falls within the scope of article 1 Rome II as the liability Johann is seekish to establish is
not related to a contract with Rhinny Rt. The tablet was purchased in a shop in Krakow. The
geographical scope of Rome II is universal, meaning that any law specified by the regulation
will be applied irrespective of if it is MS law (Art. 3). The temporal scope is in articles 31 and
32. This regulation applies to events which occurred after the 11th of January 2009.1
Therefore, as all the scopes are met, the Hungarian court will use Rome II will determine the
applicable law.
Rome II has a special rule for product liability in article 5. According to 5(1)(a), the law
applicable to a non-contractual obligation arising out of damage caused by a product is the
law where the person who sustained damage has their habitual residence provided that the
product was marketed there. Johann has his habitual residence in Germany, however the
1
ECJ 17-11-2011, C-412/10, [2011] ECR I-11603, Homawoo/GMF Assurances, para. 37
SNR: 2036559
Conflict of Laws Exam
02/06/2022
Conflict of Laws Final Exam
PART A – Holidays injury (30 points)
Rhinny Rt. is a company which is incorporated under Hungarian law and has its
principal place of business in the Hungarian capital of Budapest. In addition, it has an
establishment in China, where Rhinny Rt.’s tablets are manufactured, and an establishment
in Poland. Rhinny Rt. markets its products in Hungary, Poland and the Czech Republic.
On 30 June 2021, Maria Smidt, who lives with her family in the city of Berlin (Germany),
buys a tablet in a shop in Krakow (Poland). In July 2021, she goes with her husband and
children on a caravan holiday at Lake Garda in Italy and they take the tablet with them. On
31 July 2021 in the afternoon, Maria’s son, Johann Smidt, turns on the tablet to play Forge of
Empires when suddenly the device catches fire. The flame and heat seriously burns Johann’s
legs and hands. Johann is taken to the hospital in Verona (Italy) where he has to stay for
several weeks. Maria Smidt wants to bring a damages claim against Rhinny Rt., arguing that
the flame was caused by a defect of the tablet.
Question 1 (10 points)
Which court(s) will have jurisdiction with regard to Johann’s claim?
Question 1 (10 points) – AWARDED 8/10
There are international facts in the case as the tablet which hurt Johann was manufactured by
Hungarian company Rhinny Rt. in China and it was purchased in Poland while the harm
happened in Italy. The characterization is a damages claim due to a defective product. The
PIL question in this case concerns jurisdiction. The source to determine which court has
jurisdiction is the Brussels I-bis Regulation.
The substantive scope of the regulation is in Article 1. The regulation applies to civil and
commercial matters. This case falls within this scope and does not fall within the exceptions
listed in article 1(2). The geographical scope is in article 4. According to this article, the
defendant must be domiciled in an EU member state (MS). The defendant in this case is a
legal person and thus domicile must be determined in accordance with article 63 of the
regulation. Rhinny Rt has its principal place of business in Hungary, an EU MS, and thus the
geographical scope is met. The temporal scope is in articles 66 and 81. The regulation applies
to any proceedings commenced after the 10th of January 2015, which is also met in this case.
There is no issue of concurrence here as Brussels I-bis is the only regulation applicable. The
first step to determine which court has jurisdiction is if any court has exclusive jurisdiction
under article 24. This article does not apply in this case as it is about issues of immovable
property. Article 25 does not apply either as there is no choice of court. The next step is to
check if there are any special rules for weaker party protection. Consumer contracts fall
within this section. According to article 17(1)(c), when a contract is concluded between a
consumer and a person who pursues commercial or professional activities in the MS of the
consumer’s domicile or directs activity to that member state, it falls within the scope of this
section. The domicile of the consumer, Johann, is Germany. Rhinny Rt however does not
direct activities to Germany as the product is marketed in Hungary, Poland, and the Czech
, Alba Kalayci-Nicault
SNR: 2036559
Conflict of Laws Exam
02/06/2022
Republic. Therefore, this section would not be applicable to this case to determine which
court will have jurisdiction.
The next step is to apply the main rule in article 4. According to 4(1), persons domiciled in a
MS shall be sued in the courts of that MS. Following this, the Hungarian court would have
jurisdiction regarding Johann’s claim. Article 7 has alternative jurisdiction rules. Specifically,
article 7(2), which states that in matters relating to tort, the courts for the place where the
harmful event occurred has jurisdiction. In this case, the harmful event occurred in Italy and
therefore the Italian court also has jurisdiction. Hence, both the Hungarian and Italian courts
have jurisdiction.
Question 2 (10 points)
Assume for this question that the Hungarian court has jurisdiction. Which law will the
Hungarian court hold applicable to the claim?
Question 2 (10 points) – AWARDED 9/10
There are international facts in this case as the Hungarian court has jurisdiction, but the
parties domiciled in Hungary and Germany, the product was purchased in Poland, and the
harm occurred in Italy. The characterization of the claim is a damages claim due a defective
product. The PIL question in this case is applicable law. The sources to determine the
applicable law that the Hungarian court will apply are the Hague Product Liability
Convention (HPLC) and the Rome II Regulation.
According to article 28 of Rome II, the HPLC takes precedence over Rome II and thus the
scopes of the HPLC will be looked at first. For the HPLC to be applicable, Hungary must be
a contracting state to this convention as it is the court seized. However, Hungary is not a
contracting state to the HPLC and therefore Rome II will be applicable.
The substantive scope of Rome II is in article 1. The regulation determines the applicable law
for non-contractual obligations in civil and commercial matters. The interpretation of what
classifies as a non-contractual obligation must be in line with Rome I and Brussels I-bis. The
CJEU in Kalfelis (Case 189/87) stated that all actions which seek to establish a defendant’s
liability not relation to a ‘contract’ within the meaning of 7(1) Brussels I-bis. Therefore, this
case falls within the scope of article 1 Rome II as the liability Johann is seekish to establish is
not related to a contract with Rhinny Rt. The tablet was purchased in a shop in Krakow. The
geographical scope of Rome II is universal, meaning that any law specified by the regulation
will be applied irrespective of if it is MS law (Art. 3). The temporal scope is in articles 31 and
32. This regulation applies to events which occurred after the 11th of January 2009.1
Therefore, as all the scopes are met, the Hungarian court will use Rome II will determine the
applicable law.
Rome II has a special rule for product liability in article 5. According to 5(1)(a), the law
applicable to a non-contractual obligation arising out of damage caused by a product is the
law where the person who sustained damage has their habitual residence provided that the
product was marketed there. Johann has his habitual residence in Germany, however the
1
ECJ 17-11-2011, C-412/10, [2011] ECR I-11603, Homawoo/GMF Assurances, para. 37
