The Gazette 1985

SEPTEMBER1985

GAZETTE

Article 6 deals with co-defendants, third party claims and counterclaims and allows a defendant to be sued where any of his co-defendants are domiciled, a third party to be sued in the courts seized of the original pro- ceedings and allows a counterclaim to be brought in the courts dealing with the original claim. Article 6(a) was inserted by the 1978 Convention to provide that a court exercising jurisdiction under the Convention in actions arising from the use or operation of a ship would also have jurisdiction in claims for the limitation of such liability. Jurisdiction in Particular Insurance Claims Articles 7-12 deal with jurisdiction in matters relating to insurance. The basic rule is in Article 8 which pro- vides that an insurer domiciled in a Contracting State may be sued in the courts of that State or in the courts of the State where the policyholder is domiciled or, in the case of a co-insurer, in the courts of the State in which proceedings are being brought against the leading insurer. The intention of this and subsequent Articles relating to insurance is to try to protect the insured's interests, mainly by giving him a greater choice of juris- diction. The 1978 Convention made slight amendments to the insurance provisions in relation to ship and air- craft insurance and in relation to certain larger insurance claims where certain policyholders are not in need of protection. Jurisdiction in Consumer Contracts Articles 13-15 of the Convention were fully replaced in the 1978 Convention. Basically, in relation to certain types of consumer contracts, the new provisions allow a consumer to bring proceedings in the country of his own domicile and oblige the plaintiff in actions against a consumer to bring the proceedings in the country of this customer's domicile. (The consumer contracts covered by this section relate essentially to sales where the price is payable in instalments or where the sale is contract- Article 16 grants exclusive jurisdiction to certain courts in certain circumstances. The stipulation in Article 16 that a specified court will have exclusive jurisdiction will be effective regardless of the domicile of the def- endant and even where the parties have purported to choose an alternative forum. The exclusive jurisdiction laid down in Article 16(1) is more important and provides that in proceedings which have as their object rights in rem in, or tenancies of immoveable property, the courts of the Contracting State in which the property is situated will have exclusive jurisdiction. Some problems may arise in the common law jurisdiction in deciding exactly what con- stitutes rights in rem for the purposes of Article 16, particularly because of the distinction between legal and equitable rights in property. The main reason why the matter of tenancies was included was stated to be because tenancies are normally governed by special and complex national legislation which should preferrably be applied by the courts of the country in which it is in force. 20 And, its inclusion was stated to cover disputes between landlord and tenant over the existence or ually linked to a loan.) Exclusive Jurisdiction

interpretation of tenancy agreements, compensation for damage caused by the tenant, eviction, etc. 21 The recent case of Rosier -v- Rotlwinkle dealt with the point. 22 The Court held that Article 16(1) applied to all agree- ments for a tenancy of immoveable property, even those for limited periods and those relating to holiday homes. The Court specifically held that disputes con- cerning the obligations of the parties and, in particular, those concerning the existence or the interpretation of such obligations, the duration of the agreement, the delivery up of possession, the repair of damage caused by the tenant, or the.recovery of rent or other supple- mental charges, are within the exclusive jurisdiction of Article 16(1). However, the Court concluded, disputes concerning, only indirectly, the use of the property let, such as those concerning lost holiday enjoyment or travel expenses, do not come within that jurisdiction. The Court of Justice interpreted Article 16(1) in Sanders -v- Van der Putted A Dutch national took a lease of a premises in Germany in which he ran a business. Another Dutch national agreed to take over and run the business at a monthly rent. The Court of Justice held that the particular agreement did not come within the scope of Article 16(1) as it was primarily concerned with the running of a business. Other areas of exclusive jurisdiction covered by Article 16 include proceedings relating to the validity of the constitution, nullity or dissolution of companies, the validity of entries in public registers, the validity of patents, trademarks and similar rights 24 and proceedings concerning the enforcement of judgements. K SECURITY PRIVATE INVESTIGATIONS LTD. Founded 1947 Internationally represented in 40 countries. OUR SERVICES INCLUDE • Matrimonial/Domestic investigations. • Insurance Claims. • Employment Tribunal/Industrial Relations Employer/Employee. • Fraud, Internal Theft. • Copyright/Patent/Trade mark. Infringement. • Commercial, Civil, Criminal, Plaintiff/Defence • Trace Investigations

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