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1st sit, december 2018
1 In December 2017 Endeavour Ltd., a company incorporated and established in Manchester
(United Kingdom) concluded a construction contract with Immobilien AG in Hamburg
(Germany). On the basis of this contract Immobilien AG was obliged to refurbish an office
building of Endeavour Ltd. in Manchester. The reconstruction works of the building however
suffered considerable delays and even today are still not finished yet, Endeavour Ltd. claims
compensation for damage to be paid by Immobilien AG. The latter party, however, referring to
some contractual clauses (‘circumstances beyond control’), is not willing to compensate the
damage.
Endeavour Ltd. now plans court proceedings against Immobilien AG.
(a) Explain in which country Endeavour Ltd. can start court proceedings for compensation
against Immobilien AG. 4 points
- Recast Regulation 1215/2012, substantive (art. 1), formal (art. 4) and temporal (art. 66)
scope: complied with
- In the absence of exclusive, protective or protective fora, the plaintiff has two options: art. 4
jo. 63 (EU MS where defendant resides) = Germany,
- Or article 7 = ‘place of performance of the obligation in question’,= UK??
- Contract is neither sale, nor rendition of services (intangible, in contrast with construction
works!), so…
- CJEU Tessili-Dunlop: this place is to be designated via the conflict of law rules of the forum
seized (by, of course, plaintiff), so the English court must apply its foral conflict rules;
- According to UK conflict of laws (currently still) Rome I applies, and in the absence of a
law chosen by the parties (art. 3), article 4 (objective proper law test) applies. Article 4.1
(catalogue) does not cover construction works (and please note that art. 4 1 c only relates to
contracts concerning a right in rem or tenancy of an immovable, not to contract of
construction works to an immovable!), but art 4.2 final sentence (residence of party providing
for the characteristic performance) = where constructor resides = Germany
- if, according to German BGB (Civil Code), the place of performance is in the UK, then
indeed an English court shall have jurisdiction (otherwise: in Germany, German court thus
being competent).
(b) Suppose that the reconstruction operation would have to be carried out not by Immobilien
AG but by another construction company residing in Moscow, Russia. Explain in which legal
order Endeavour Ltd. can start court proceedings against the Russian company. 2 points
Recast? Not applicable, as defendant is residing outside formal scope territory (art. 4
jo. 6); neither is there a choice of court (widened scope art. 25)
Art. 7 cannot be applied here (‘…in another Member State’)
Endeavour most likely can start proceedings in Russia, depending on Russian PIL, or
start proceedings in UK inasmuch a bilateral Treaty with Russia national long armed
statute under UK civil procedural laws allows for it
1st sit, december 2018
1 In December 2017 Endeavour Ltd., a company incorporated and established in Manchester
(United Kingdom) concluded a construction contract with Immobilien AG in Hamburg
(Germany). On the basis of this contract Immobilien AG was obliged to refurbish an office
building of Endeavour Ltd. in Manchester. The reconstruction works of the building however
suffered considerable delays and even today are still not finished yet, Endeavour Ltd. claims
compensation for damage to be paid by Immobilien AG. The latter party, however, referring to
some contractual clauses (‘circumstances beyond control’), is not willing to compensate the
damage.
Endeavour Ltd. now plans court proceedings against Immobilien AG.
(a) Explain in which country Endeavour Ltd. can start court proceedings for compensation
against Immobilien AG. 4 points
- Recast Regulation 1215/2012, substantive (art. 1), formal (art. 4) and temporal (art. 66)
scope: complied with
- In the absence of exclusive, protective or protective fora, the plaintiff has two options: art. 4
jo. 63 (EU MS where defendant resides) = Germany,
- Or article 7 = ‘place of performance of the obligation in question’,= UK??
- Contract is neither sale, nor rendition of services (intangible, in contrast with construction
works!), so…
- CJEU Tessili-Dunlop: this place is to be designated via the conflict of law rules of the forum
seized (by, of course, plaintiff), so the English court must apply its foral conflict rules;
- According to UK conflict of laws (currently still) Rome I applies, and in the absence of a
law chosen by the parties (art. 3), article 4 (objective proper law test) applies. Article 4.1
(catalogue) does not cover construction works (and please note that art. 4 1 c only relates to
contracts concerning a right in rem or tenancy of an immovable, not to contract of
construction works to an immovable!), but art 4.2 final sentence (residence of party providing
for the characteristic performance) = where constructor resides = Germany
- if, according to German BGB (Civil Code), the place of performance is in the UK, then
indeed an English court shall have jurisdiction (otherwise: in Germany, German court thus
being competent).
(b) Suppose that the reconstruction operation would have to be carried out not by Immobilien
AG but by another construction company residing in Moscow, Russia. Explain in which legal
order Endeavour Ltd. can start court proceedings against the Russian company. 2 points
Recast? Not applicable, as defendant is residing outside formal scope territory (art. 4
jo. 6); neither is there a choice of court (widened scope art. 25)
Art. 7 cannot be applied here (‘…in another Member State’)
Endeavour most likely can start proceedings in Russia, depending on Russian PIL, or
start proceedings in UK inasmuch a bilateral Treaty with Russia national long armed
statute under UK civil procedural laws allows for it
