With respect to contracts involving the sale of goods, the Brussels I Regulation, Art 5(1)(b) confers special jurisdiction on the courts of the Member State where the goods are delivered. Although it is clear that this provision was inserted into the Regulation in order to remedy the shortcomings of its predecessor in the Brussels Convention, it is doubtful whether the approach of the House of Lords in Scottish & Newcastle v. Othon Ghalanos to the interpretation of this provision accords with this aim. In ascertaining the place of delivery by reference to various principles of English commercial law, the House has accepted the continuing need to refer to the applicable law in order to determine this preliminary issue. Furthermore, and perhaps more worrying, Lord Mance appears to have suggested that all FOB contracts should receive the same treatment with respect to this jurisdictional enquiry, regardless of the precise features of the contract in question. Such an assertion comes close to adopting an autonomous definition of the “place of delivery” that is inconsistent with the intention behind Art 5(1)(b) and that may ultimately prove to be unworkable in practice.

Under the Brussels Convention 1968 (“the Convention”),1 the European Court of Justice (“ECJ”) held that notions of characteristic performance generally had no role to play in the allocation of special jurisdiction over contractual matters.2 Accordingly, a court had to identify the (principal) obligation in the contract that formed the basis of the claim,3 and then determine the place of performance of that obligation by applying the law identified by the forum’s choice of law principles.4 This continues to be the general approach that the courts of Member States must adopt when determining whether they have jurisdiction in matters relating to contract under Art 5(1)(a) of the Brussels I Regulation (“the Regulation”).5 There is, however, a far-reaching exception to this general position in Art 5(1)(b) of the Regulation. This provision represents a radical departure from the position under the Convention, since it allocates special jurisdiction over certain types of contract to the place in a Member State where the characteristic obligation is performed,6 in particular “in the case of the sale of goods, [to] the place in a Member State where, under the contract, the goods were delivered or should have been delivered”. Whilst some elements of this jurisdictional rule undoubtedly necessitate a uniform and autonomous definition, most notably the issue of what constitutes a “sale of goods” for the purposes of Art 5(1)(b),7 the identification of the jurisdictionally relevant place of delivery appears to be for national courts to ascertain on a case-by-case basis.8 The approach that the English courts should adopt to guide them in this task was the central issue in Scottish & Newcastle International Ltd v. Othon Ghalanos Ltd.9