Lloyd's Maritime and Commercial Law Quarterly
JURISDICTION IN RELATION TO A CONTRACT SPLIT BETWEEN TWO STATES
Leathertex Divisione Sintetici SpA
v. Bodetex BVBA
Article 5(1) of the Brussels Convention1
allows for a person domiciled in a Contracting State2
to be sued in the courts of another Contracting State “in matters relating to a contract, in the courts for the place of performance of the obligation in question”. The situation was unclear where a claimant brought a composite claim under a contract, in the courts other than those of the defendant’s domicile, and the claim was founded on obligations to be performed in different jurisdictions. Such a situation arose in Leathertex Divisione Sintetici SpA
v. Bodetex BVBA,
where both a claim for commissions owing and for compensation in lieu of termination were brought. The European Court of Justice (ECJ) ruled that pursuant to Art. 5(1), the same court does not
have jurisdiction to hear the whole of an action founded on two obligations of equal rank arising from the same contract, where one of those obligations is to be performed in another Contracting State.
The facts of Leathertex
were quite straightforward. Bodetex was a Belgian company while Leathertex was an Italian company. Under a long-term arrangement, Bodetex had acted as a commercial agent for Leathertex in Belgium and the Netherlands, receiving 5% commission as remuneration. After unsuccessfully asking for commission allegedly owing to it, Bodetex treated the agreement as terminated. It brought proceedings in Belgium for the payment of arrears of commission and compensation in lieu of notice. Article 2 of the Brussels Convention provides that persons domiciled in a Contracting State shall, whatever their nationality, be sued in the courts of that State. Thus, prima facie,
the Italian company should be sued in Italy. However, Bodetex sought to bring both claims before the Belgian courts pursuant to Art. 5(1).
The Belgian Commercial Court (Rechtbank van Koophandel) held that the two obligations were of equal rank. The first obligation was to give a reasonable period of notice on termination of a commercial agency agreement, and in default to pay
1. The Brussels Convention, as amended, is contained in the Civil Jurisdiction and Judgments Act 1982. For a more detailed account of the Brussels Convention and the various amending Conventions see A. Briggs and P. Rees, Civil Jurisdictions and Judgments
(London, 1997), 5–7 (hereafter “Briggs and Rees”).
2. [1999] 2 All E.R. (Comm) 769. The Contracting States to the Convention are Belgium, Denmark, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain and the United Kingdom. A Convention for the accession of the newer European Union States, namely, Austria, Finland and Sweden, was signed in 1996 ([1997] O.J. C.15/2); however this has not yet been ratified in the United Kingdom. These States, together with the other States of the European Free Trade Association, are covered by the Lugano Convention. This Convention is almost identical with the consolidated version of the Brussels Convention. However it is not within the interpretative jurisdiction of the European Court of Justice.
CASE AND COMMENT
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