Brussels I bis Regulation, jurisdiction clause, contractual matters, French law, Civil Procedure Code, jurisdictional attribution clause, CAJ, tort law, contract law, copyright infringement
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Abstract
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Abstract
Analysis of jurisdiction clause validity under Brussels I bis Regulation and French law in contractual disputes.
Extract
[...] Jane can therefore also always bring the courts of these three Member States. In this case, the damage having materialized in part in France, Jane will be able to bring the French courts. However, based on the place of materialization of the damage, Jane will only be able to obtain partial compensation for the part of the damage that occurred in France. The eDate Advertising ruling does offer this possibility, certainly, but it also provides a more opportune basis: the centre of interests of the victim, therefore of Jane. [...]
[...] The eDate Advertising judgment delivered in 2011 by the CJEU states that in the event of damage caused by the internet, the victim may freely bring an action against: - The courts of the place of establishment of the person who committed the generating fact to obtain full compensation for the damage. - The courts of the place of the centre of interests of the victim to obtain full compensation for the damage. - The courts of the place of materialization of the damage to obtain partial compensation for the damage. [...]
[...] In this case, the CAJ is not valid under common French law according to Article 48 of the Civil Procedure Code. In fact, it was not stipulated visibly in the contract. Article 42 of the Civil Procedure Code does not give jurisdiction to the French judge, since the defendant is not domiciled in France. However, Jane and the hotel concluded a service provision contract, as previously demonstrated. Thus, since the service is performed in France, the French courts are competent on the basis of Article 46 of the Civil Procedure Code. [...]
[...] The hotel confirmed having received the order, but has never paid the invoice produced by Jane. It has now been over two months since Jane has been trying in vain to obtain payment of her invoice. Jane solicits your assistance. She fears she will never be paid. She wonders if she can bring the French courts to obtain a favorable outcome. Jane is not at the end of her suffering, from her Parisian apartment, she has put online on her website www.janepoterie.com original photographs of her creations made by her, in order to present her works to her clients all over the world. [...]
[...] It could be a contract for the sale of goods, as it provides for the delivery of tableware to the United States. However, the main obligation appears to be the service performed by Jane. In fact, the hotel concluded the contract with Jane to benefit from tableware decorated by her, not industrial tableware. Furthermore, it is Jane's responsibility to select the materials and verify their compliance. Jane's work is therefore more important than the delivery of the tableware. However, if the clause is not valid, the Brussels I bis Regulation becomes inapplicable, as its spatial scope of application will no longer be fulfilled, since the defendant is domiciled outside the European Union. [...]
