Tutorial 4 - Contractual obligations in Private International Law
Task 8 - Practice
Case 1 ‘House for rent’
1. Which court in the EU has international jurisdiction?
There is a crossborder element in this case because the vacation house was in France, both
of the parties are domiciled in England. (You don’t have to write that there is a crossborder
element in the exam)
Preamble number 40: UK and Ireland are part of the Regulation, as well as Denmark.
The instrument that we will probably use is the Brussels I Recast Regulation because the
case is about a contract and this regulation is about civil and commercial matters (a contract
falls within these matters), in order to establish its applicability we need to determine the
scope:
- Material scope: art. 1 (1) also write that it does not fall into the exceptions of 1 (2)
- Formal scope: art. 4 (1) - 6 is the standard formal scope. We also must mention that
art. 62 must be used in conjunction with (probably) art 4 and we use 63 for
companies to define domicile! Also, the options of art. 24 and 25 exist as a formal
scope.
- Temporal scope: arts. 66 and 81
All the scopes are fulfilled, so Brussels I Recast is applicable.
Application order: We start with exclusive jurisdiction (24). If there is no exclusive jurisdiction
then you check if there is special fora (sections 3-5), if there is special fora, you stop. If not,
you check prorogation (25, 26), if there is prorogation, you stop, if not: Special (section 2),
which is always next to: General (art 4)jurisdiction. The last two are kind of alternative. Last
one is General.
First, we are going to apply article 24 (1). According to this article, in proceedings regarding
tenancies of immovable properties, the court of a Member state in which the property is
situated has jurisdiction, which in our case is France. However, the second part of
subsection (1) says that in the case that the tenancy of the immovable property was
concluded for a temporary private use for a maximum period of 6 months, the courts of the
Member State in which the defendant is domiciled has jurisdiction. This is the case, and
therefore the English court also has jurisdiction. So the applicant chooses the court of
jurisdiction in case of an alternative connecting factor. We dont need to look at the other
numbers in the article because it is exclusive jurisdiction.
Tacit (silent) agreement (art 26) = you agree on the jurisdiction of a court by appearing in the
proceedings. You show that you accept this court’s jurisdiction.
We analyze the case and by means of characterization we arrive at the instrument that could
be applicable.
2. Which law will be applied by the competent court?
Task 8 - Practice
Case 1 ‘House for rent’
1. Which court in the EU has international jurisdiction?
There is a crossborder element in this case because the vacation house was in France, both
of the parties are domiciled in England. (You don’t have to write that there is a crossborder
element in the exam)
Preamble number 40: UK and Ireland are part of the Regulation, as well as Denmark.
The instrument that we will probably use is the Brussels I Recast Regulation because the
case is about a contract and this regulation is about civil and commercial matters (a contract
falls within these matters), in order to establish its applicability we need to determine the
scope:
- Material scope: art. 1 (1) also write that it does not fall into the exceptions of 1 (2)
- Formal scope: art. 4 (1) - 6 is the standard formal scope. We also must mention that
art. 62 must be used in conjunction with (probably) art 4 and we use 63 for
companies to define domicile! Also, the options of art. 24 and 25 exist as a formal
scope.
- Temporal scope: arts. 66 and 81
All the scopes are fulfilled, so Brussels I Recast is applicable.
Application order: We start with exclusive jurisdiction (24). If there is no exclusive jurisdiction
then you check if there is special fora (sections 3-5), if there is special fora, you stop. If not,
you check prorogation (25, 26), if there is prorogation, you stop, if not: Special (section 2),
which is always next to: General (art 4)jurisdiction. The last two are kind of alternative. Last
one is General.
First, we are going to apply article 24 (1). According to this article, in proceedings regarding
tenancies of immovable properties, the court of a Member state in which the property is
situated has jurisdiction, which in our case is France. However, the second part of
subsection (1) says that in the case that the tenancy of the immovable property was
concluded for a temporary private use for a maximum period of 6 months, the courts of the
Member State in which the defendant is domiciled has jurisdiction. This is the case, and
therefore the English court also has jurisdiction. So the applicant chooses the court of
jurisdiction in case of an alternative connecting factor. We dont need to look at the other
numbers in the article because it is exclusive jurisdiction.
Tacit (silent) agreement (art 26) = you agree on the jurisdiction of a court by appearing in the
proceedings. You show that you accept this court’s jurisdiction.
We analyze the case and by means of characterization we arrive at the instrument that could
be applicable.
2. Which law will be applied by the competent court?
