JURE SUMMARY

A company having its seat in Germany brought an action before a German court against a company having its seat in Austria. The subject matter of the claim concerned a cheque issued in Austria which the bank on which the cheque was drawn refused to cash upon its presentation by the plaintiff. The cheque was for payment of the purchase price for building materials which had been bought in Germany. The defendant argued that the building materials which it had bought were defective, and challenged the international jurisdiction of the German courts. The Bundesgerichtshof (DE) holds that the German courts lack international jurisdiction. In particular, jurisdiction cannot be based on Article 5(1) Brussels Convention. In this regard, only the place of performance of the obligation arising from the cheque is to be considered. The place where the defendant was to perform its obligation to pay the purchase price is irrelevant. The controversial question of whether claims arising from a cheque are of a contractual nature need not be decided. Even if this was the case, and Article 5(1) Brussels Convention applied, the German courts would still lack jurisdiction. Under Article 5(1) Brussels Convention, the place of performance of the obligation in question must be determined according to the law applicable under the conflict of law rules of the court seised. According to German international cheque law, Austrian law applies, as the cheque was signed in Austria. According to Austrian law, the place of performance of the claim arising from the cheque is Austria. Therefore, the jurisdiction of the German courts cannot be established in the latter case either.