1. International facts
a. The international facts are present as…
2. Characteristics
3. PIL Question: which question
4. Sources (if multiple applies, mention both)
5. Scope (the scope is identified based on the source in question)
6. Concurrence: when two or more instruments apply and need to decide which one
applies
7. Application (most important step)
1. Assess if there are international facts
a. Indicate very briefly whether there are facts that make the case international facts
(max 1-2 sentences)
b. The international facts are present as…
2. Characteristics
c. contract or non-contractual but elaborate more
d. Kinda mentioned PIL question but in a more specific manner (characteristic
specific to the case)
8. PIL Question: which question
a. Three main question of PIL:
i. Jurisdiction/ competence of the court
ii. Applicable rule/ choice of law
iii. Recognition and/or enforcement
9. Sources (if multiple applies, mention both)
a. Choose the sources based on PIL Question (also explain why something does
not apply)
b. mention domestic laws (mentioned, do not actually need to know them)
, 10. Scope (the scope is identified based on the source in question)
a. If two sources apply, examine both
11. Concurrence: when two or more instruments apply and need to decide which one
applies
a. If only one source applies → no concurrence
b. If two sources applies → see the legislation to see which one prevails
12. Application (most important step)
a. Respect hierarchy if there is
b. Always have to have conclusion
Checklist before submitting answer:
1. Check the name of the convention
a. Choice of court → only if there is choice of court!!
b. Sale of goods → only applies if there is sale of goods
2. Focus!!
3. If the contract does not cover than matter → non-contractual (see mock exam)
4. Check information from all files
5. Reference cases
6. Check if the matter is outside the scope!! → then non-contractual
7. Link articles to the facts of the case!!
BLOCK 2 - Jurisdiction
Brussels I-bis Regulation (1215/2012) regarding jurisdiction
Scope Substantive/material scope: art. 1
- Art. 1(1): regulating “civil and commercial matters” autonomous
conconcept
- Autonomous concept defined in LTU v Eurocontrol → it is
is autonomous and independent of the corresponding
national legal concepts
- Art. 1(2): regulating exclusions (family law, succession, insolvency,
social security and arbitration)
Geographic scope: arts 4-6 (home country of defendant)
- Art. 4: persons domiciled in MS shall be sued on the court of their
MS → defendant must be domiciled in a MS
- Exceptions: art. 18, 21 and 24, 25
- Art. 6: if the defendant is not domiciled in MS, each MS
shall determine the jurisdiction based on their MS law
(subject to arts. 18(1) and 21(2) - universal, 24 +25 -
different)
- Art. 24: exclusive grounds of jurisdiction
- Art. 25 (choice of court clause: regardless of domicile but
, chosen court of MS)
- Art. 18 (consumers → universal scope)
- Art. 21 (employer → universal)
- Domicile defined in arts. 62 and 63
- 62 for domicile of natural person
- 63 for domicile of legal persons
Temporal scope: art. 66 +81
- Proceedings after 10th January 2015
Concurrence If also Hague Choice of Court Convention applies → Brussels I-bis takes
precedence over HCCC based on art. 69
Application 1. Exclusive Jurisdiction - art. 24
Article 24 assigns exclusive jurisdiction to one Member State only,
irrespective of the domicile of the defendant and of the plaintiff → Rules 4,
7, 8 and 10-23 do not apply when article 24 is applicable → exclusive fields
of law where MS should deal with (immovable property, public registers,
incorporation of companies)
- 24(1): proceedings must take place exclusively in the courts of MS
where the immovable property is situated
- Exception temporary tenancies for private use (max 6 consecutive
months when tenant is natural person domiciled in same MS as
landlord) —> defendants and claimants stat have jurisdiction
- If parts in different MSaeach MS jurisdiction over
respective part
- 24(2): Validity, nullity, dissolution companies → place of seat of
company according to national law → reference to Rome I (bc it is
a purely national matter – PIL questions still refer to Rome I)
- Does not have to be identical to definition in art. 63(1)
- If multiple MS consider having a seat in their territory →
court first seized (art. 31(1))
- 24(3): validity of entries into public registries → place where
registries are kept
- 24(3): registration or validity IP rights → place deposit or
registration of the patent/ trademark
- GAT v Luk applies regardless of whether validity is raised
by way of action or as a plea of objection (defense)
- 24(5): exclusive jurisdiction of MS where judgment has been or is
to be enforced to carry out proceedings concerned with the
enforcement
2. Tacit Submission - art. 26 (implies submission)
- When there is a prior choice of court made or where there is no
choice, but parties decide to enter an appearance before a certain
court (not when entering appearance to contest jurisdiction 26(1))
- Occurs when defendant accepts the jurisdiction of a court
by participating in the court proceeding without contesting
jurisdiction → unless exception under. 24
- Art. 26(2): guarantees for weaker parties → when consumer/
employee is the defendant, the court should still apply tacit
agreement but needs to ensure that defendant is able to contest &
ensure the appearance
3. Choice of Court - art. 25
Choice-of-court clauses are presumed to be exclusive, so that they deprive
all courts other than the agreed one(s) of jurisdiction.
- Formal requirements:
, - In writing or evidence in writing
- Case Powell v Duffryin: clause in statutes of
company limited by shares, adopted in accordance
with national law and statues of company is valid
- MSG: oral contract with jurisdiction clause is valid
if one party did not react to letter of confirmation or
paid invoice without objection to a reference to
competent court pre-printed on these invoices
- Any communication by electronic means which provides
durable record is equivalent to in writing
- In accordance with practices between parties
- example, in previous contracts by use of standard
terms
- In accordance with international trade or commerce usage
that parties are or ought to be aware of is widely known
- MSG: practice exists where a particular course of
conduct is generally followed by parties operating
in that branch
- Castelletti: usage and awareness thereof exists
when it is generally and regularly followed by
parties in particular branch in which parties
operate
- not necessarily that is exists in all EU-MS
& form of publicity not always requires
- Hoszig KFT v Alstom: clause inserted in general
terms & conditions designates courts of a city
- Substantive validity
- Art. 25(1): in connection with a particular legal relationship
- Existing or future disputes
- Castelletti: connection between court and parties/ cases is
not required
- Cannot set aside art. 24 or conflict with 15,19 and 12
- Effects
- Art. 25(1): chosen court exclusive jurisdiction, unless
parties agreed otherwise
- Art. 25(5): agreement conferring jurisdiction part of contract
is independent from other thermal validity is considered
apart from the contract
- Arts. 29-34 also apply in case of jurisdiction clause
- Gasser: court second seized should stay
proceedings if it is chosen court
4. Protective jurisdiction - arts. 10-23
- Weaker party protection
- Insurance contracts (art. 10-16)
- Consumer contracts (art. 17-19)
- Employment contract (art. 20-23)
Reasoning steps:
Step 1: qualification
● Which issues are covered?
● What types of contracts?
● Which conditions must be met?
Step 2: if regulation applies
● Which court has jurisdiction?
● Are extra courts provided or an exhaustive list?
● Is a distinction drawn dependent upon the claimant?
a. The international facts are present as…
2. Characteristics
3. PIL Question: which question
4. Sources (if multiple applies, mention both)
5. Scope (the scope is identified based on the source in question)
6. Concurrence: when two or more instruments apply and need to decide which one
applies
7. Application (most important step)
1. Assess if there are international facts
a. Indicate very briefly whether there are facts that make the case international facts
(max 1-2 sentences)
b. The international facts are present as…
2. Characteristics
c. contract or non-contractual but elaborate more
d. Kinda mentioned PIL question but in a more specific manner (characteristic
specific to the case)
8. PIL Question: which question
a. Three main question of PIL:
i. Jurisdiction/ competence of the court
ii. Applicable rule/ choice of law
iii. Recognition and/or enforcement
9. Sources (if multiple applies, mention both)
a. Choose the sources based on PIL Question (also explain why something does
not apply)
b. mention domestic laws (mentioned, do not actually need to know them)
, 10. Scope (the scope is identified based on the source in question)
a. If two sources apply, examine both
11. Concurrence: when two or more instruments apply and need to decide which one
applies
a. If only one source applies → no concurrence
b. If two sources applies → see the legislation to see which one prevails
12. Application (most important step)
a. Respect hierarchy if there is
b. Always have to have conclusion
Checklist before submitting answer:
1. Check the name of the convention
a. Choice of court → only if there is choice of court!!
b. Sale of goods → only applies if there is sale of goods
2. Focus!!
3. If the contract does not cover than matter → non-contractual (see mock exam)
4. Check information from all files
5. Reference cases
6. Check if the matter is outside the scope!! → then non-contractual
7. Link articles to the facts of the case!!
BLOCK 2 - Jurisdiction
Brussels I-bis Regulation (1215/2012) regarding jurisdiction
Scope Substantive/material scope: art. 1
- Art. 1(1): regulating “civil and commercial matters” autonomous
conconcept
- Autonomous concept defined in LTU v Eurocontrol → it is
is autonomous and independent of the corresponding
national legal concepts
- Art. 1(2): regulating exclusions (family law, succession, insolvency,
social security and arbitration)
Geographic scope: arts 4-6 (home country of defendant)
- Art. 4: persons domiciled in MS shall be sued on the court of their
MS → defendant must be domiciled in a MS
- Exceptions: art. 18, 21 and 24, 25
- Art. 6: if the defendant is not domiciled in MS, each MS
shall determine the jurisdiction based on their MS law
(subject to arts. 18(1) and 21(2) - universal, 24 +25 -
different)
- Art. 24: exclusive grounds of jurisdiction
- Art. 25 (choice of court clause: regardless of domicile but
, chosen court of MS)
- Art. 18 (consumers → universal scope)
- Art. 21 (employer → universal)
- Domicile defined in arts. 62 and 63
- 62 for domicile of natural person
- 63 for domicile of legal persons
Temporal scope: art. 66 +81
- Proceedings after 10th January 2015
Concurrence If also Hague Choice of Court Convention applies → Brussels I-bis takes
precedence over HCCC based on art. 69
Application 1. Exclusive Jurisdiction - art. 24
Article 24 assigns exclusive jurisdiction to one Member State only,
irrespective of the domicile of the defendant and of the plaintiff → Rules 4,
7, 8 and 10-23 do not apply when article 24 is applicable → exclusive fields
of law where MS should deal with (immovable property, public registers,
incorporation of companies)
- 24(1): proceedings must take place exclusively in the courts of MS
where the immovable property is situated
- Exception temporary tenancies for private use (max 6 consecutive
months when tenant is natural person domiciled in same MS as
landlord) —> defendants and claimants stat have jurisdiction
- If parts in different MSaeach MS jurisdiction over
respective part
- 24(2): Validity, nullity, dissolution companies → place of seat of
company according to national law → reference to Rome I (bc it is
a purely national matter – PIL questions still refer to Rome I)
- Does not have to be identical to definition in art. 63(1)
- If multiple MS consider having a seat in their territory →
court first seized (art. 31(1))
- 24(3): validity of entries into public registries → place where
registries are kept
- 24(3): registration or validity IP rights → place deposit or
registration of the patent/ trademark
- GAT v Luk applies regardless of whether validity is raised
by way of action or as a plea of objection (defense)
- 24(5): exclusive jurisdiction of MS where judgment has been or is
to be enforced to carry out proceedings concerned with the
enforcement
2. Tacit Submission - art. 26 (implies submission)
- When there is a prior choice of court made or where there is no
choice, but parties decide to enter an appearance before a certain
court (not when entering appearance to contest jurisdiction 26(1))
- Occurs when defendant accepts the jurisdiction of a court
by participating in the court proceeding without contesting
jurisdiction → unless exception under. 24
- Art. 26(2): guarantees for weaker parties → when consumer/
employee is the defendant, the court should still apply tacit
agreement but needs to ensure that defendant is able to contest &
ensure the appearance
3. Choice of Court - art. 25
Choice-of-court clauses are presumed to be exclusive, so that they deprive
all courts other than the agreed one(s) of jurisdiction.
- Formal requirements:
, - In writing or evidence in writing
- Case Powell v Duffryin: clause in statutes of
company limited by shares, adopted in accordance
with national law and statues of company is valid
- MSG: oral contract with jurisdiction clause is valid
if one party did not react to letter of confirmation or
paid invoice without objection to a reference to
competent court pre-printed on these invoices
- Any communication by electronic means which provides
durable record is equivalent to in writing
- In accordance with practices between parties
- example, in previous contracts by use of standard
terms
- In accordance with international trade or commerce usage
that parties are or ought to be aware of is widely known
- MSG: practice exists where a particular course of
conduct is generally followed by parties operating
in that branch
- Castelletti: usage and awareness thereof exists
when it is generally and regularly followed by
parties in particular branch in which parties
operate
- not necessarily that is exists in all EU-MS
& form of publicity not always requires
- Hoszig KFT v Alstom: clause inserted in general
terms & conditions designates courts of a city
- Substantive validity
- Art. 25(1): in connection with a particular legal relationship
- Existing or future disputes
- Castelletti: connection between court and parties/ cases is
not required
- Cannot set aside art. 24 or conflict with 15,19 and 12
- Effects
- Art. 25(1): chosen court exclusive jurisdiction, unless
parties agreed otherwise
- Art. 25(5): agreement conferring jurisdiction part of contract
is independent from other thermal validity is considered
apart from the contract
- Arts. 29-34 also apply in case of jurisdiction clause
- Gasser: court second seized should stay
proceedings if it is chosen court
4. Protective jurisdiction - arts. 10-23
- Weaker party protection
- Insurance contracts (art. 10-16)
- Consumer contracts (art. 17-19)
- Employment contract (art. 20-23)
Reasoning steps:
Step 1: qualification
● Which issues are covered?
● What types of contracts?
● Which conditions must be met?
Step 2: if regulation applies
● Which court has jurisdiction?
● Are extra courts provided or an exhaustive list?
● Is a distinction drawn dependent upon the claimant?
