Stappenplan Private International Law
Is BIa applicable?
1) Geographical scope: only MS of the EU (recital 8 BIa).
a. Also tribunals common to the member states (recital 11 BIa)
b. Domicile in the EU of the defendant is no longer required for consumer or
employment section and for choice of court agreements neither party must
be domiciled. Link to the EU of the case remains needed, but not
necessarily the domicile of the defendant.
2) International element: (recitals 3 and 26)
a. Flexible interpretation by the CJEU
i. Owusu: the involvement of a contracting state and a non-
contracting state, because they are domiciled in one state and the
facts occured in the other, is enough.
ii. Inkreal: fully domestic dispute, but choice of court outside the state
is enough.
iii. Other cases: Lindner, Commerzbank (consumer contracts),
maletic, SMD v. Banco santander.
iv. Vinyls Italia: flexibility also for applicable law
3) Civil and Commercial Matters: Acta iure imperii are excluded from the scope of
application. (art. 1 BIa.)
a. Cases:
i. Eurocontrol: a judgement between government and private
individual MAY fall within the scope, but not if the public authority
acts in the exercise of its powers.
ii. Other cases: Steenbergen, Sonntag, Sapir
iii. Fahnenbrock: Government actions need to have ‘direct and
immediate effect’ on the legal relationship to be an acta iure imperii.
1. Kuhn: abandonig in Fahnenbrock test.
2. Supreme site services: back to eurocontrol caselaw.
3. Belgische staat v Movic BV: the pursuit of general interest is
not the same as the exercise of public powers.
4) Excluded matters: see article 1 BIa.
a. Arbitration: debated => see cases and recital 12 BIa.
i. Rich: the exclusions does not only apply to the arbitration
proceedings themselves, but also to other proceedings where the
‘subject-matter of the dispute’ is arbitration: ex. The appointment
by a regular court of an arbitrator.
ii. West Tankers: it is not enough that the procedure relates to
arbitration to be excluded. Ex. An anti-suit injunction before an
italian court with arbitration proceedings in the UK.
, Exclusive jurisdiction regardless of domicile: Article 24
The rules need to be interpreted restrictively, for they are an exception to the general rule
of article 4. This article trumps out voluntary appearance and choice of court agreements,
because it serves the interests of the appointed state. Choice of court agreements will be
disregarded due to article 25.4 BIa. If there several courts with exclusive jurisdiction, any
court other than the first seized will decline jurisdiction (Article 31 BIa.)
1) Rights in rem and tenacies of immovable property: The courts of the MS in
which the property is located (Article 24.1 BIa.).
a. Cases mentioned on the slides:
i. Heslop v. Heslop: the rule is not engaged in in personam claims
related to a trust in foreign land.
ii. Lieber: both actions based on rights in rem and in personam, but it
does have to be a ‘tenancy’
1. Klein: not a time-share
2. Hacker v. Euro-Relais: not a whistles and bells contract
2) Life and death of companies and the existence or not of the decisions of their
bodies: the courts of the MS where the Company has its seat (Article 24.2 BIa.).
a. Certainly not:
i. BVG: the classic case of an ultra vires argument by way of defence.
ii. Kerr v. Postnova: the enforcement of decisions of corporate bodies.
Only the existence of the decisions.
3) The Valdity of entries in public registers: only the formal validity of such entries
and not the legal consequences, not the conditions for entry, not the actions
undertaken against a party unwilling to effect registration (article 24.3 BIa.)
a. Case on slides:
i. Barclay Pharmaceuticals v. Mekni: only the formal validity of the
entry and not the ownership of the assets related to the entry.
4) The registration or validity of patents: (article 24. 4 BIa.)
a. Denials of infringement are not covered.
5) The enforcement of judgements: (Article 24.5 Bia.)
a. Case on slide:
i. AS-Autoveille Service: cannot resurrect discussions on what
preceded, or bring discussion on new issues such as mutual debt
compensation.
Jurisdiction by appearance: Article 26
The defendant can decide voluntarily to appear. Also called ‘submission’ or ‘prorogation’.
1) Not for article 24 cases.
2) Protected categories may voluntarily appear, but the judge must warn them that
they don’t have to.
a. Case law:
i. ZX v. Raynair: the simple observation by the court that lack of
defendant response to clerk request for comments on jurisdiction,
does not amount to submission.
Is BIa applicable?
1) Geographical scope: only MS of the EU (recital 8 BIa).
a. Also tribunals common to the member states (recital 11 BIa)
b. Domicile in the EU of the defendant is no longer required for consumer or
employment section and for choice of court agreements neither party must
be domiciled. Link to the EU of the case remains needed, but not
necessarily the domicile of the defendant.
2) International element: (recitals 3 and 26)
a. Flexible interpretation by the CJEU
i. Owusu: the involvement of a contracting state and a non-
contracting state, because they are domiciled in one state and the
facts occured in the other, is enough.
ii. Inkreal: fully domestic dispute, but choice of court outside the state
is enough.
iii. Other cases: Lindner, Commerzbank (consumer contracts),
maletic, SMD v. Banco santander.
iv. Vinyls Italia: flexibility also for applicable law
3) Civil and Commercial Matters: Acta iure imperii are excluded from the scope of
application. (art. 1 BIa.)
a. Cases:
i. Eurocontrol: a judgement between government and private
individual MAY fall within the scope, but not if the public authority
acts in the exercise of its powers.
ii. Other cases: Steenbergen, Sonntag, Sapir
iii. Fahnenbrock: Government actions need to have ‘direct and
immediate effect’ on the legal relationship to be an acta iure imperii.
1. Kuhn: abandonig in Fahnenbrock test.
2. Supreme site services: back to eurocontrol caselaw.
3. Belgische staat v Movic BV: the pursuit of general interest is
not the same as the exercise of public powers.
4) Excluded matters: see article 1 BIa.
a. Arbitration: debated => see cases and recital 12 BIa.
i. Rich: the exclusions does not only apply to the arbitration
proceedings themselves, but also to other proceedings where the
‘subject-matter of the dispute’ is arbitration: ex. The appointment
by a regular court of an arbitrator.
ii. West Tankers: it is not enough that the procedure relates to
arbitration to be excluded. Ex. An anti-suit injunction before an
italian court with arbitration proceedings in the UK.
, Exclusive jurisdiction regardless of domicile: Article 24
The rules need to be interpreted restrictively, for they are an exception to the general rule
of article 4. This article trumps out voluntary appearance and choice of court agreements,
because it serves the interests of the appointed state. Choice of court agreements will be
disregarded due to article 25.4 BIa. If there several courts with exclusive jurisdiction, any
court other than the first seized will decline jurisdiction (Article 31 BIa.)
1) Rights in rem and tenacies of immovable property: The courts of the MS in
which the property is located (Article 24.1 BIa.).
a. Cases mentioned on the slides:
i. Heslop v. Heslop: the rule is not engaged in in personam claims
related to a trust in foreign land.
ii. Lieber: both actions based on rights in rem and in personam, but it
does have to be a ‘tenancy’
1. Klein: not a time-share
2. Hacker v. Euro-Relais: not a whistles and bells contract
2) Life and death of companies and the existence or not of the decisions of their
bodies: the courts of the MS where the Company has its seat (Article 24.2 BIa.).
a. Certainly not:
i. BVG: the classic case of an ultra vires argument by way of defence.
ii. Kerr v. Postnova: the enforcement of decisions of corporate bodies.
Only the existence of the decisions.
3) The Valdity of entries in public registers: only the formal validity of such entries
and not the legal consequences, not the conditions for entry, not the actions
undertaken against a party unwilling to effect registration (article 24.3 BIa.)
a. Case on slides:
i. Barclay Pharmaceuticals v. Mekni: only the formal validity of the
entry and not the ownership of the assets related to the entry.
4) The registration or validity of patents: (article 24. 4 BIa.)
a. Denials of infringement are not covered.
5) The enforcement of judgements: (Article 24.5 Bia.)
a. Case on slide:
i. AS-Autoveille Service: cannot resurrect discussions on what
preceded, or bring discussion on new issues such as mutual debt
compensation.
Jurisdiction by appearance: Article 26
The defendant can decide voluntarily to appear. Also called ‘submission’ or ‘prorogation’.
1) Not for article 24 cases.
2) Protected categories may voluntarily appear, but the judge must warn them that
they don’t have to.
a. Case law:
i. ZX v. Raynair: the simple observation by the court that lack of
defendant response to clerk request for comments on jurisdiction,
does not amount to submission.
