Italy’s residual private international law rules in the spotlight in Dolce & Gabbana v Diet Prada defamation suit.

I was unaware of a fashion blogosphere war of words and more between Dolce & Gabbana and the founders of Diet Prada until I was asked to comment (in Dutch) on the pending lawsuit in Italy. The suit has an echo of SLAPP – Strategic Lawsuit Against Public Participation.

Among others this post on The Fashion Law gives readers the necessary background and also links to the defendants’ lawyers reply at the jurisdictional level. It is this element of course that triggered the interview request, rather than my admittedly admirable sense of style (with sentences like these, I think I may be in need of a break).

Readers might be surprised to find the legal team discussing A7(2) Brussels Ia’s forum delicti, and CJEU authority such as Bolagsupplysningen seeing as per A6 BIa the Regulation does not apply, rather the Italian residual rules. However as Andrea Bonomi and Tito Ballarino review in the Encyclopedia of Private International Law, Italy has extended the scope of application of BIa to its internal sphere. Hence an interesting discussion of the CJEU case-law on locus damni, centre of interests etc. As well as a probably ill-fated attempt to encourage the Italian courts, in subsidiary fashion, to exercise forum non should the A7(2) arguments fall on deaf ears. Probably futile seeing as the Italian regime does not know a foum non rule, however if BIa is extended, would that not also extend to forum non-light in A33-34? As far as I could tell from the submission, however, no reference was made  to an 33-34 challenge.

Enfin, lots of interesting things to ponder at a different occasion. Happy Easter all.

Geert.

EU Private International Law 3rd ed. 2021, para 2.437 ff.

Jamieson v Wurttemburgische Versicherung. On being seized for lis alibi pendens purposes, and on whether the protected categories regimes ought to gazump torpedo actions.

Jamieson v Wurttemburgische Versicherung AG & Anor [2021] EWHC 178 (QB) has been in my draft folder for a while – Master Davison refused an application for a stay on the basis of A29 Brussels I’a’s lis alibi pendens rule, holding that the issue of which court was being seized first, was properly sub judice in the German courts, as is the issue whether litigation subject to the protected categories, should rule out a stay in cases where the weaker party is being disadvantaged.

James Beeton has the background to the case here. Claimant was injured in a road traffic accident in Munich. He was working as a commodities broker for the second defendant. He was attending the Oktoberfest with clients, whom he was entertaining. He was walking from the beer hall to his hotel. He crossed a busy highway and was struck by a taxi, sustaining very severe injuries. The precise circumstances of the collision are in dispute. The taxi was insured by the first defendant, against whom the claimant has a direct right of action.

I tell students and pupils alike that too strong a hint of judicial action in pre-litigation action may trigger a torpedo suit in a court not preferred by client. That is exactly what happened in this case. In pre-action correspondence the insurers for the taxi were asked to confirm that they would not issue proceedings in another jurisdiction – to which they never replied other than by issuing proceedings in Germany for a negative declaration, i.e. a declaration that they were not liable for the accident. Those proceedings had been issued on 18 July 2017. Claimants then issued protectively in England on 10 May 2018. The to and fro in the German proceedings revealed that the correct address for the English claimant was not properly given to the German courts until after the English courts had been seized. 

Hence two substantive issues are before the German courts: when were they properly seized (a discussion in which the English courts could formally interfere using A29(2) BIa); and if they were seized first, is A29 subordinate to the protected categories’ regime: for if the German torpedo goes ahead, claimant in the English proceedings will be bereft of his right to sue in England.

The suggestion for the second issue is that either in Brussels Ia, a rule needs to be found to this effect (I do not think it is there); or in an abuse of EU law (per ia Lord Briggs in Vedanta) argument (CJEU authority on and enthusiasm for same is lukewarm at best).  Despite Master Davison clear disapproval of the insurer’s actions at what seems to be an ethical level, he rules out a stay on the basis of comity and of course CJEU C-159/02 Turner v Grovit: the English High Court must not remove a claim from the jurisdiction of the German courts on the basis of abuse of EU law before those courts.

A most interesting case on which we may yet see referral to the CJEU – by the German courts perhaps.

Geert.

EU Private International Law, 3rd ed 2021, Heading 2.2.9.4, 2.2.15.1.

Koch Films v Ouragan Films et al. The French SC on provisional measures under Brussels IA.

Gilles Cuniberti  discusses Koch Films v Ouragan Films et al at the French Supreme Court, a case which as also signalled by Hélene Péroz. The judgment is an important one for it signals the continuing uncertainty of interpreting ‘provisional’ under Brussels Ia. In its earlier case-law (Ergo; Haras de Coudrettes) the SC took a more relaxed approach than a strict reading of CJEU St.Paul Dairy might suggest. Unlike Gilles I do not think the SC’s judgment here necessarily signals a return to orthodoxy. In rebuking the Court of Appeal for having too readily dismissed the measures as not being provisional, and in demanding it review whether the measures might not (also) be meant to preserve evidence, it could be said that the opposite might be true: as long as the measure at least in part preserves evidence, other motives do not endanger its provisional character.

En se déterminant ainsi, par une affirmation générale, sans rechercher si ces mesures, qui visaient à obtenir la communication de documents en possession des parties adverses, n’avaient pas pour objet de prémunir la société Koch contre un risque de dépérissement d’éléments de preuve dont la conservation pouvait commander la solution du litige, la cour d’appel a privé sa décision de base légale au regard des textes susvisés [7]

One will have to await future direction.

Geert.

EU Private International Law 3rd ed 2021, 2.559.

 

Mittelbayerischer Verlag: determining centre of interests for jurisdiction in online defamation cases. The AG suggests this is not the case for big changes.

What I said in my post on Markt24 this morning, also goes for the Opinion of Bobek AG in C-800/19 Mittelbayerischer Verlag KG v SM: others have in the meantime posted analysis on it, in this case Tobias Lutzi whose scholarship was cited by the AG.

Claimant is a Polish national who had been a former Auschwitz prisoner. He brought a civil claim against a German newspaper before the Polish courts for having used the expression ‘Polish extermination camp’ in an online article to refer to a Nazi extermination camp built on the territory of (then) occupied Poland. The camp in Treblinka was a Nazi extermination camp built within the territory of occupied Poland. Not a ‘Polish’ or indeed even a ‘German’ concentration camp: a Nazi or fascist camp. But I stray.

Although the article had been online for only a few hours before it was corrected, the applicant maintains that the online publication has harmed his national identity and dignity.

Do Polish courts have international jurisdiction to hear such claim? In the main proceedings, the applicant is not only seeking monetary compensation, but also other remedies: a court order prohibiting the publisher from using the expression ‘Polish extermination camp’ in the future and the publication of an apology. (For related issues on the nature of the remedy, see prof Hess’ post on the blog here). Bolagsupplysningen is the most recent relevant CJEU authority. Some of the complications of that case recently featured in Napag Trading and in  Saïd v L’Express.

Warsaw was undoubtedly the claimant’s centre of interest per Bolagsupplysningen, yet the referring court wondered whether this was sufficient to give it jurisdiction given the range of remedies sought by the claimant (damages; prohibition to use the term in the future; public apology). Particularly seeing as the intensity of contact of the claimant with the offending material was on the lighter side: unlike eDate, the online article that formed the basis for the action did not directly concern claimant. The paper’s regional profile and readership range, and focus on regional news, the entirely German nature of the site, lack of any targeting of non-regional readers etc.. meant it was not at all directed at anything else but a local readership.

As Tobias points out, the AG reemphasises (39-44) the unfortunate consequences of Mozaik jurisdiction per CJEU Bier, as plenty of AGs and scholars have done with him. He suggests however that current case is not one suited to a wholesale revisiting of the Bier authority, specifically in an internet context (see also the phrase ‘ubiquitous nature’ of the internet in Google v CNIL, per Szpunar AG), seeing as the essence of the dispute is one on the merits. Instead, he suggests the Court exercise judicial economy and take a most narrow approach to the case: whether in a case seeking a prohibition on the use of a certain statement in the future and the publication of an apology, the applicability of centre of interests of a party allegedly harmed by online publication, be precluded by the fact that that person is not named in the publication at issue?

The case therefore will be an opportunity to specify to some extent the open questions with respect to the indivisibility of the remedies in online defamation cases (see also Gtflix TV and BVC v EWF).

Tobias maps the AG’s approach which discusses predictability yet anchors the conclusion unto the very reason (ia per recitals 15 and 16 which themselves go back to the Report Jenard) for having introduced A7 special jurisdiction: the connection of the court to the facts of the case (59):

any alternative grounds of jurisdiction, must be ‘based on a close connection between the court and the action or in order to facilitate the sound administration of justice. The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a Member State which he could not reasonably have foreseen. This is important, particularly in disputes concerning non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation’.

‘the reasonable foreseeability of the centre of gravity of a dispute should not be effectively replaced by the publisher’s knowledge of the place of the victim’s domicile (62)’

A criterion of intent (69) must not be introduced for online torts, the AG suggests (cf intention expressed as ‘directing at’ in the consumer title). Applied to the case at issue, given the nature of the expressions used (the use of ‘Polish concentration camps’ can be predicted to create a fall-out in Poland, even if one does not have any specific individuals on one’s radar). At 81 ff the AG adds quasi-obiter that at the enforcement stage, any Polish judgment prohibiting in particular further use of the phrase may indeed bounce off German ordre public – as Burkhard’s post discusses re an earlier case.

What would be rather cool is for the CJEU in spite of the AG’s invite not to do so, to take the opportunity of this case to bin or radically amend Bier. That is a pipe dream: this is not going to happen [or is it 😉 ?] particularly seeing as the case will not be held in Grand Chamber.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.12.2.5, and para 2.598 in fine.

 

 

Benkel v East-West German Real Estate Holding. Potential future proceedings should not frustrate anchor jurisdiction.

In Benkel v East-West German Real Estate Holding & Anor [2021] EWHC 188 (Ch), Morgan J was asked to join a party on the basis of Article 8(1) Brussels Ia’s anchor defendant mechanism, and obliged. Mr Dikautschitsch (domiciled in either Spain or Germany) is to be one of a number of defendants. One of the existing defendants, East-West UK, is domiciled in England and Wales.

Casio Computer Co Ltd v Sayo & Ors [2001] EWCA Civ 661 was the authority mostly relied on, as was, via the link with Article 30, Sarrio SA v Kuwait Investment Authority. Expediency to add the second defendant to the proceedings was found to be present given the possibility of conflicting findings of fact [59]. Morgan J rejected [64] a rather novel argument that given the possibility of the E&W courts’ findings of fact clashing with potential future proceedings elsewhere, he should refrain from exercising his discretion to consolidate.

Geert.

European Private International Law, 3rd ed. 2021, Heading 2.2.13.1.

TOT and TOP v Vodafone. An awkward emphasis on the potential for submission in deciding a stay for related cases.

In Top Optimized Technologies SL (A Company Incorporated Under the Laws of Spain) & Anor v Vodafone Group Services Ltd & Ors [2021] EWHC 46 (Pat) Smith J is asked to stay proceedings on the basis of Article 30 Brussels Ia’s related actions rule.

Three sets of proceedings are pending: one in Madrid; two in the UK. Parties, even some of them are of similar corporate blood, are not the same. Hence an Article 29 lis alibi pendens application is not possible. Arguments advanced at 39 ff in favour of a stay, are in the main, the same facts and matters being traversed (with an immediate indication of Smith J that the applicable law being different counts against, there being a ‘danger in overstating the overlap’); the danger of relitigating earlier proceedings elsewhere, and of consequential double recovery.

Smith J at 40 ff is in favour of what he calls the ‘wide approach’ to A30 (unlike a more narrow approach under A29 and incidentally under A45), to which I can subscribe. At 45 he sums up his reasons for declining the stay which of course are largely discretionary. However, among them is one oddity: at 45(4):

Moreover, this is a case where Vodafone has avoided – entirely properly – the jurisdiction of the Spanish courts by invoking the exclusive jurisdiction clauses in favour of England and Wales. Vodafone could have submitted to the jurisdiction of the Spanish courts under Article 26, but instead elected to invoke Article 25. As a result, proceedings involving all relevant parties (Vodafone and Huawei) and so eliminating any risk of irreconcilable judgments have not been possible. No criticism can be made of Vodafone in this: but, conversely, it seems to me perverse now to prevent the progression of the Second UK Proceedings in circumstances where the fragmentation of the originally constituted Madrid Proceedings against Huawei and Vodafone has occurred at Vodafone’s insistence. (emphasis in the original)

This echoes the findings of Lord Briggs in Vedanta, that the potential for submission carries a lot of weight in ultimate jurisdictional decisions. I am not convinced Brussels Ia supports this.

Geert.

European Private International Law, 3rd ed. 2021, Heading 2.2.15.2 (para 2.521 ff)

 

The insurance title and branch jurisdiction under Brussels Ia. Sánchez-Bordona AG in CNP.

Sánchez-Bordona AG opined last week in C-913/19 CNP. The issue is whether a Polish court has international jurisdiction to rule on a dispute between a company to which a person injured in a road traffic accident that occurred in Poland had assigned his rights, and the insurance undertaking, established in Denmark, which insures the risks of the person who caused the accident. Krzysztof Pacula has interesting Polish context here. He also gives more background to the market and legal implications of involving third parties (such as garages repairing vehicles and providing replacement vehicles) and I am happy to refer to his analysis.

On applicable law and assignment, the EC has proposed rules which complement Rome I. That proposal is making its way through the Institutions, at snail’s pace. On jurisdiction, CJEU Hofsoe clarified one or two things but also created extra fog. The UKSC distinguished Hofsoe in Aspen Underwriting, not however without great effort and with continuing question marks. This really is an area which could do with co-ordinated Rome I and BIa legislative tweaking.

On the specific issue of branch jurisdiction, the case echoes Ryanair v DelayFix. The AG finalises his analysis on that question as follows:

 a commercial company established in a Member State which operates under a contract with an insurance undertaking established in another Member State may be classified as a ‘branch, agency or other establishment’ of that undertaking if, cumulatively:

–        it operates in a Member State by providing compensation for material damage on the basis of insurance against civil liability arising from the use of motor vehicles the risks connected with which are covered by the insurance undertaking;

–        it has the appearance of an extension of the insurance undertaking; and

–        it has a management body and material facilities such as to enable it to transact business with third parties, so that the latter, although knowing that there will if necessary be a legal link with the insurance undertaking, do not have to deal directly with that undertaking.’

Not of course a set of criteria which lead to much spontaneous predictability – again an issue which in the specific insurance context could do with statutory intervention.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.293 ff, para 2.73 ff.

ING v Banco Santander. Deferring to extensive discussion of national law on the insolvency exception, and a bit too rich a pudding on privity of choice of court.

The critical point in Monday’s judgment in  ING Bank N.V. & Anor v Banco Santander S.A. [2020] EWHC 3561 (Comm), an application for lack of jurisdiction, is whether this is a case about claims which a syndicate of eight lenders, including ING, had against Marme Inversiones 2007 S.L.U (“Marme”) under a loan agreement and related swap agreements (together “the Marme Agreements”) which were entered into between the lenders and Marme in September 2008, or whether it is about the effect of the ongoing liquidation of Marme in Spain on those claims. The Defendant Applicant says the latter, the Claimant Respondents say the former.

Of note is that on 2 January 2020, Sorlinda, whose agreements are at issue, merged into Santander. As a consequence of the merger, Santander assumed all of Sorlinda’s rights and liabilities.

At 4 Cockerill J summarises ‘the field of battle’ (at 4) as follows:

Santander contends that the court should refuse to exercise jurisdiction or order a stay because:

i) The claim falls within the EU Insolvency Regulation on insolvency proceedings (the “Insolvency Regulation”) and is excluded from the scope of the recast Regulation (EU) No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the “Brussels Regulation”) pursuant to Article 1(2)(b) of the Brussels Regulation.

ii) Even if the Claim does not fall within the exception under Article 1(2)(b), ING cannot rely upon Article 25 of the Brussels Regulation.

iii) As a matter of Spanish law, ING has not established that Sorlinda became liable to ING for Marme’s liabilities.

iv) There are in any event grounds for the Court to refuse to exercise its jurisdiction and/or to order a stay.

ING contends that:

i) The bankruptcy/winding up exclusion in Article 1(2)(b) of the Brussels Regulation does not apply. The Claim is between two solvent entities in relation to contractual payment obligations under the Marme Agreements, and has no effect on Marme or any of its other creditors. The Claim does not derive directly from Marme’s winding up nor is it closely connected with that winding up.

ii) The question of whether or not Santander is bound by the Marme Agreements is a question of English law having appropriate regard to the effect of the relevant “assumption” of Marme’s obligations by Sorlinda (now Santander) as a matter of Spanish law.

iii) There is (at least) a good arguable case that as a consequence of the “assumption” Santander has a direct liability to ING under the Marme Agreements which are subject to the exclusive jurisdiction of the English courts.

iv) There are no grounds for the Court to refuse to exercise its jurisdiction and/or to order a stay. (GAVC underlining)

She holds that the jurisdictional challenge succeeds on the A25 BIa point, and also on the Insolvency Regulation point. The other grounds (assumption in Spanish Law and case management stay) would have failed.

Arguments in essence concern Brussels Ia’s insolvency exception. Per CJEU Gourdain, an action is related to bankruptcy only if it derives directly from the bankruptcy and is closely linked to proceedings for realising the assets or judicial supervision. Valach and F-Tex is CJEU authority also discussed.

In general, it is the closeness of the link between a court action and the insolvency proceedings that is decisive for the purposes of deciding whether the insolvency exclusion is applicable (CJEU German Graphics). In the absence of substantive EU insolvency law, the CJEU does not push an autonomous interpretation of the concept and defers largely to national insolvency law.

Whether the action is within the scope of BIa therefore requires examination of the national laws at issue, and that is done at length (featuring ia prof Virgós,  whose expert report clearly impressed Mrs Justice Cockerill).

Core of the decision on the insolvency exception, is at 197:

..the nature of the claim is one which is defined by something which took place in the liquidation, and the dispute effectively cannot be expressed without reference to the conduct of the liquidation. Although there is no challenge to the validity of the liquidator’s actions, the proceedings do necessarily require a consideration of the ambit of those powers and the ambit of actions done as part of those powers. The question of to what extent Sorlinda assumed the relevant liability can only be answered by looking at the deal which was struck in the context of the Liquidation Plan (governed by Spanish insolvency law) and the statutory insolvency framework.

The claim is not covered by BIa. English courts do not have jurisdiction over it.

Article 25 BIa is discussed first in fact, at 113 ff. However I would have thought (although Cockerill J suggest quite the reverse) that the A25 arguments must be obiter, with the insolvency exception findings logically coming first. This may be at issue when this judgment is appealed and /or referred to later.

On A25, ING must demonstrate a good arguable case either as to succession to choice of court, or as to specific consent. It was clear that the latter was not established hence discussion focused on novation /succession.  Authority discussed was of course Refcomp, Coreck Maritime, Tilly Russ etc.

This section of the judgment does not have the same clarity as the discussion on insolvency. Much reference is made to the relevance of either Spanish or English law on the issue of privity of choice of court, however this seems to be mostly done with reference to those laws being potential lex contractus (of the underlying contract). Even if the issue is not completely dealt with autonomously by EU law (which is arguable; and would have ended reference to any national laws), discussion of national law arguably should be to lex fori prorogati per the new rule in Brussels Ia (even a putative lex fori prorogati). At any rate, no succession or novation is established.

Something to clear out in my head over the end of year break.

This was most probably my last posting for the year.

Merry Christmas, everyone, and Guten Rutsch. Be safe, and remember this nice thought.

 

Geert.

European Private International Law, 3rd ed., 2021, Heading 2.2.3.1 (2.73 ff) and Heading 2.2.10.7 (2.355 ff).

 

Ryanair v DelayFix. The CJEU dots some i’s on choice of court and unfair terms in consumer contracts; defers to national law on the assignment issue; and keeps schtum on renvoi in Article 25 Brussels Ia.

In C-519/19 Ryanair v DelayFix, the CJEU held yesterday. The case echoes the facts in Happy Flights v Ryanair at the Belgian Supreme Court.

Following inter alia  CJEU Jana Petruchova, the (absence of) impact of substantive European consumer protection rules on the consumer section of European private international law is now fairly settled. The separation between the two sets of laws seems quite clear for the application of the consumer section itself.

However under A25 BIa, EU consumer law might still play a role in those circumstances where the conditions of the consumer Section are not met (dual-use contracts, contracts for transport (such as here) etc.) yet where one of the parties may qualify as a consumer under substantive EU consumer protection law.

A core issue of contention is the consideration of the EU unfair terms in consumer contracts Directive 2019/2161 and its predecessor Directive 93/13 , which was applicable in Ryanair v DelayFix. Via Article 25’s lex fori prorogati rule on substantive validity for choice of court, the Directive plays an important role.

In the case at issue at the CJEU, Passenger Rights, now DelayFix, a company specialised in the recovery of air passengers’ claims under the EU Regulation on air passenger rights, has requested the courts at Warsaw to order Ryanair,  to pay EUR 250 in compensation, a passenger on the relevant flight having assigned DelayFix their claim with respect to that airline.

The CJEU first of all looks at the issue from the limited extent of what is actually materially regulated by A25: the requirement of ‘consent’ (as well as the formal expression of that consent. It holds, not surprisingly, that in principle of course a jurisdiction clause incorporated in a contract may produce effects only in the relations between the parties who have given their agreement to the conclusion of that contract (referring ex multi to Refcomp).  In the case at issue,  a jurisdiction clause incorporated in the contract of carriage between a passenger and that airline cannot, in principle, be enforced by the latter against a collection agency to which the passenger has assigned the claim.

However, at 47, there is a gateway for the choice of court nevertheless to extend to third parties, namely when the third party not privy to the original contract had succeeded to an original contracting party’s rights and obligations, in accordance with national substantive law. At 49, referring to A25(1), that law is the lex fori prorogati. Here: Irish law.

Recital 20 BIa in fact instructs to include the lex fori prorogati’s conflict of laws rules (in other words: an instruction for renvoi) to be part of the referral. In the aforementioned Belgian SC ruling in Happy Flights, renvoi was simply ignored. Here, the CJEU does not mention renvoi, even if it does not expressly exclude it.

The CJEU does point out that Directive 93/13 on unfair terms in consumer contracts of course is part of the Irish lex fori prorogati, as it is of all the Member States. In making that reference it would seem to have answered in the negative the question whether the ‘consent’ provisions of that Directive have not been superseded in the context of the ‘consent’ requirements of Article 25 Brussels Ia, as recently discussed obiter in Weco Projects.

Per previous case-law, the capacity of the parties to the original agreement at issue is relevant for the application of the Directive, not the parties to the dispute.  Further, a jurisdiction clause, incorporated in a contract between a consumer and a seller or supplier, that was not subject to an individual negotiation and which confers exclusive jurisdiction to the courts in whose territory that seller or supplier is based, must be considered as unfair under Article 3(1) of Directive 93/13 if, contrary to requirement of good faith, it causes significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer. Reference is made in particular to Joined Cases C‑240/98 to C‑244/98 Océano Grupo (at 58).

It will be up to the national courts seised of a dispute, here: the Polish courts, to draw legal conclusions from the potential unfairness of such a clause (at 61). DelayFix therefore are not quite yet home and dry.

Geert.

European Private International Law, 3rd ed. February 2021, Chapter 2, para 2.240.

The CJEU in Ellmes Property Services. Forum contractus in the case of real estate co-ownership with echoes of De Bloos.

The CJEU held yesterday in C‑433/19 Ellmes Property Services.

On the application of Article 24(1) Brussels Ia rights in rem it confirms Szpunar AG’s Opinion which I discussed here: the erga omnes charachter or not of the rights relied upon needs to be confirmed by the referring court for A24(1) to be engaged.

I suggested the forum contractus analysis was the more exciting one. The Advocate General advised it be determined by the Italian judge following the conflicts method per CJEU 12/76 Tessili v Dunlop, with little help from European harmonisation seeing i.a. as the initial co-ownership agreement dates back to 1978.

The Court held at 39 that the fact that a downstream co-owner was not a party to the co-ownership agreement concluded by the initial co-owners has no effect on there being a contract per A71(a)  BIa, per Ordre des avocats du barreau de Dinant and Kerr

Unlike the AG, however, the CJEU does not hold that the Tessili Dunlop looking over the fence test is required. It comes seemingly uncomplicated to the conclusion of the locus rei sitae as the forum contractus. At 44, yet linking it to the intention of the contractual obligations:

It seems that that obligation is thus intended to ensure the peaceful enjoyment of the property subject to co-ownership by the owner of that property. Subject to verification by the referring court, that obligation relates to the actual use of such property and must be performed in the place in which it is situated.

This may however harbour more uncertainty than first meets the eye. The CJEU here seems to suggest the original contractually designed ‘peaceful enjoyment by the owner’ , which indicates the contractual performance as being one of ‘actual use’ as determining the forum contractus.  A claim relating to a more immaterial use of the property, such as arguably letting the property for financial gain, or indeed an intention to divest the property, would in this perception not necessarily be linked to the locus rei sitae – which brings one back to the discussion entertained by the AG: depending on who brings which claim and how that claim is formulated (an echo from De Bloos, whose usefulness is currently sub judice in Wikingerhof), forum contractus will vary.

Geert.

(Handbook of) EU Private International Law, Chapter 2, Heading 2.2.6.1 (cited by the AG) and Heading 2.2.11.1.

(Third edition forthcoming February 2021).