Agrégateur de flux

Thank you Chloe Oakshett for flagging [2018] CSOH 45 BN Rendering Limited v Everwarm Ltd, in which the Commercial Court in Edinburgh considered its jurisdiction to enforce an adjudicator’s award. Bone of contention was choice of court (ditto law) in the underlying contracts in favour of the courts at England (and English law). Both parties are domiciled in Scotland. Relevant works had to be carried out in Scotland. The Brussels I Recast Regulation does not formally apply between them: Scots-English conflicts are not ‘international’ within the meaning of that Regulation.

However Lord Bannatyne (at 16) points out that even for intra-UK conflicts, the Civil Jurisdiction and Judgements Act 1982 (per instruction in section 20(5) a) must be interpreted taking into account the Brussels regime and its application by the CJEU. It is in this context that Case 24/76 Colzani resurfaces: ‘real consent’ needs to be established without excess formality.

At 28 Lord Banatyne lists claimant’s arguments:  the party’s contract was not signed by both parties; nevertheless the defender’s subcontract terms and conditions form part of the contract; the subcontract order refers expressly to the defender’s subcontract terms and conditions which includes the jurisdiction exclusion clause and lastly, that express reference meets the test for real consent to the jurisdiction clause.

Put in summary: At 49: Is an express reference in the defender’s subcontract order (sent to the pursuer) to the defender’s subcontract terms and conditions, which contain the jurisdiction clause (which document is unsigned by the pursuer) sufficient to satisfy the test that it is clearly and precisely demonstrated that the parties agreed to the clause conferring jurisdiction on the English courts? Or put another way, in order to satisfy the said test is it not only necessary for there to be an express reference to the defender’s subcontract terms and conditions but for the subcontract order to have been signed by the pursuer to demonstrate that the parties agreed to the clause conferring jurisdiction on the English courts?

The judge considers the answer to the above questions to be question 1, yes and question 2, no – and I believe he is right.

Geert.

Dans un arrêt du 26 juin 2018, le Tribunal de l’Union européenne fait droit à l’opposition de la France à l’enregistrement du signe visuel « France.com ».

en lire plus

The last issue of the Revue critique de droit international privé will shortly be released. It contains several casenotes and an article, authored by Campbell McLachlan who is Professor of Law at Victoria University of Wellington (“Entre le conflit de lois, le droit international public et l’application internationale du droit public : le droit des relations externes des Etats »).

The abstract reads as follows:

The relationships between States and individuals of foreign nationality from the perspective of their constitutional rights and freedoms raise a series of issues that all States must resolve and that sit at the interface of the constitutional order of each of them and the intertional legal system through which they are connected. Today, this interface has progressively become porous, raising legal problems in increasing numbers and with increased frequency. The various responses generated thereby exercise a powerful influence over the legal imaginary, including on the ways in which a legal system represents its own relationship with the rest of the world. The thesis developed here is that such responses belong to a third discipline, in between the two traditional, public and private, branches of international law. This discipline can be called «  the law of external relations », borrowing a term from one of the Restatements of the United States but little used in Europe. In what follows, the possible conceptions of this disciplinary field will be explored, along with its relationship to private international law.

A full table of contents is available here.

Non lieu à renvoi et irrecevabilité

Non lieu à renvoi