- The State of Domicile.
According to the Brussels
Convention persons domiciled in a contracting state shall, whatever
their nationality, be sued in the courts of that state.3 Consequently,
if the Belgian buyer in our example wants to file an action against
Buzzware because they have sent him faulty products, a German
Court will according to this rule have sole jurisdiction to adjudicate.
In order to determine whether a party is domiciled in a contracting
state a court shall apply its internal law. The seat of a company
shall be treated as its domicile; however, in order to determine
that seat the court shall apply its rules of private international
law. Thus in our example this will be decided by the internal
law of the country in which the Belgian buyer files his action.
The relevance of placement of equipment such as servers in another
country, or the operations of the equipment or the service in
general from another country are aspects that probably can affect
the question of establishing domicile. These issues have so far,
to the authors knowledge, not been widely discussed.
- The Place of Performance.
There are some exemptions
from the above mentioned main rule. This will in certain circumstances
provide a plaintiff with a choice as to where he may sue the defendant.
In matters relating to a contract a person domiciled in a contracting
state may be sued in another contracting state then the domicile
state, namely in the state where the contract should be performed,
i.e. the place of performance determines jurisdiction. Thus, courts
in the state where the obligation has been, or should have been,
fulfilled have jurisdiction. In the case concerning Buzzwares´
failure to deliver products to the Belgian buyer, the buyer can
chose between filing an action before a German Court, (domicile
of the defendant), or file an action before a Belgian Court, (place
of performance).
A discussion concerning the place of performance in electronic
commerce when the product is provided over the Internet is a discussion
that would have bearing also as regards the Brussels convention.
- The Consumer-Relation.
There are rules in the Brussels Convention, based on consumer protection,
which lay down that a consumer may chose between filing an action either in the
country in which he is domiciled or in the seller's country of
domicile. However, the seller can only sue the consumer in the
consumer's country of domicile. So, in case the Belgian buyer
fails to pay, and he turns out to be a consumer, Belgian courts
will have exclusive jurisdiction to adjudicate the dispute.
- Prorogation of Jurisdiction.
According to the Brussels Convention the parties to a contract have the right to
make an agreement as to which court is to have jurisdiction to
adjudicate a dispute. This agreement will hinder a trial in another
court, but only if one of the parties make an objection concerning
the court's jurisdiction. There are, however, certain formal requirements
that must be fulfilled for such prorogation to be accepted under
the Brussels convention.
If Buzzware has, as a condition for business, on its Web-site
provided that all disputes concerning contracts entered into shall
be adjudicated by a German court such a provision will only be
enforced if it fulfills the formal requirements set up by the
Brussels convention. These are in short; 1) that the agreement
shall be in writing or evidenced in writing, or 2) in a form which
accords with practices established between the parties, or 3),
in international trade or commerce, in a form which accords with
a usage of certain dignity.4
The requirement for writing does not necessarily only include
handwriting on paper, however, the provision still has to be interpreted
in relation to conditions provided on a web site. Here as in so
many other cases the functional requirements which have lead to
a rule requiring writing have to be identified and solutions acceptable
in an electronic commerce environment drawn up.
If the buyer is a consumer, such provisions will in no case
have an effect due to the exclusive rules regarding consumers.
- Freedom of Choice.
The Rome Convention lays down that the law chosen by the parties shall
govern a contract. The choice does not have to be in writing, but it must be expressed
or demonstrated with reasonable certainty by the terms of the
contract or the circumstances of the case. Thus, this requirement
has to be interpreted in different Internet environments.
- The Closest Connection.
In the absence of choice of applicable law, the Rome Convention expresses the principle
that the law of the State with which the contract is most closely
connected shall govern the contract. Furthermore, there is a presumption
that the contract is most closely connected with the country where
the party who is to effect the performance which is characteristic
of the contract has, at the time of conclusion of the contract,
his habitual residence, or, in the case of a corporate body, its
central administration.
As regards the contract between Buzzware and the Belgian buyer,
according to this presumption, German law would govern the contract
since the contract's characteristic performance is to deliver
the products.5
- Certain Consumer Contracts.
Even in a consumer-relation the parties are under the Rome Convention in
principle free to chose applicable law. However, the consumer is protected so far
that he can not by such an agreement be deprived of protection
that is given to him by mandatory rules of the law of the State
in which he habitually resides. This exemption is applicable if
firstly, the consumer, before concluding the contract, was subject
to a special invitation, or advertising, in the State of his habitual
residence. Secondly, if he has taken all necessary steps on his
part for the conclusion of the contract in that country. Thus,
the Belgian buyer would, provided he is a consumer, be protected
by mandatory rules in Belgian law, even if German law governs
the rest of the contract.
