Posts Tagged Artcle 5(1)
It does. It really does. (Warning: The next sentence drops all pretext of this posting having poetic qualities). Canyon v GDF Suez is an absolutely perfect illustration of the challenges of the special jurisdictional rule of Article 5(1) of the Brussels I Regulation (now Article 7(1) Brussels Ibis). Starting with the very discussion of whether there was at all a contract between parties (a prima facie case of which is required to trigger Article 5; put differently: there need not even be solid proof of such contract existing), into the discussion of ‘goods’ v ‘services’; back to the at first sight very very puzzling fall-back provision of the third indent of the Article (‘(c) if subparagraph (b) does not apply then subparagraph (a) applies.”; finally, to the determination of ‘the place of performance of the obligation in question’.
Claimant (“Canyon”) is a Scottish company with its registered office in Aberdeen. Defendant applicant (“GDF”), a Dutch company, is a large owner and operator of oil and gas fields. GDF contracted with Cecon NL BV for the transportation and installation of pipelines. Cecon subcontracted to Canyon. Cecon fell behind in payments and GDF committed to paying relevant sub-contractors directly. Canyon relies on that alleged contract and on that contract allegedly having its place of performance in the UK.
Mackie J, no doubt with very able assistance by counsel, does an absolutely perfect job of taking the case through Article 5’s cascade, with impeccable reference to relevant ECJ case-law. Readers are best directed to the (concise) judgment itself. Many thanks to Ryan Deane for alerting me for the case – he has an excellent summary here.
Fantastic class material. Geert.
Brussels Ibis Article 7(1)
(a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;
(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:
– in the case of the sale of good, the place in a Member State where, under the contract, the goods were delivered or should have been delivered,
– in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided,
(c) if subparagraph (b) does not apply then subparagraph (a) applies.”