Keywords
Summary

Keywords

Convention on Jurisdiction and the Enforcement of Judgments - Special jurisdiction - Court for the place of performance of the contractual obligation - Determination of the place of performance of the obligation in accordance with the law applicable under the conflict rules of the court seised

(Convention of 27 September 1968, Art. 5(1))

Summary

$$On a proper construction of Article 5(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic, and by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic, the place of performance of the obligation, within the meaning of that provision, is to be determined in accordance with the law governing the obligation in question according to the conflict rules of the court seised.

The principle of legal certainty, which is one of the objectives of the Convention, requires, in particular, that the jurisdictional rules which derogate from the basic principle of the Convention, such as Article 5(1), should be interpreted in such a way as to enable a normally well-informed defendant reasonably to foresee before which courts, other than those of the State in which he is domiciled, he may be sued. Determination of the place of performance by reference to the nature of the relationship of obligation and the circumstances of the case would, as Article 5(1) stands at present, be insufficient to resolve all questions linked to application of that provision. Moreover there is no risk that the law applicable to the determination of the place of performance will vary depending on the court seised, since the conflict rules enabling the law applicable to the contract to be determined have been standardised in the Contracting States by the Convention of 19 June 1980 on the Law applicable to Contractual Obligations