Lloyd's Maritime and Commercial Law Quarterly
“Tacit contractual relationships” and the special jurisdiction provisions of the Brussels I Regulation: Granarolo v Ambrosi
Michael McParland*
In Granarolo, the ECJ has introduced a new concept of a “tacit contractual relationship” into cross-border jurisdiction disputes under the Brussels I Regulation. In certain circumstances, the existence of such a relationship can result in a claim for damages for the abrupt ending of a long-term business relationship, a claim that both the French referring court and Advocate General Kokott considered to be a matter relating to tort, instead being considered a matter relating to a contract. This may well result in a different outcome from the jurisdictional challenge by the Italian defendant before the French courts. In introducing this new concept in Granarolo, the Court has gone further than in their previous case law in giving guidance to national courts as to how the boundary lines between contract and tort should be marked out for jurisdiction purposes. Unfortunately this guidance is both unclear and unhelpful, and is likely to cause further difficulties in future as the operational limits of this concept are hammered out.
Introduction
Hard-fought battles over the interpretation of the special jurisdiction rules for “matters relating to a contract” and “matters relating to tort, delict or quasi-delict” are a regular feature of cross-border litigation in Europe. Because of the differing connecting factors used in Arts 5(1) and 5(3) of the Brussels I Regulation1—which are now found, unchanged, in Arts 7(1) and 7(2) of the Brussels I (Recast) Regulation2—the classification of an action as being “contractual” or “tortious” will often determine whether a claimant’s chosen forum can be maintained as an alternative to the otherwise mandated courts of the Member State of the defendant’s domicile. Because of the importance of these provisions, an increasing body of interpretative rulings from the ECJ3 has evolved.
* Barrister-at-law, England and Wales and the British Virgin Islands; Attorney-at-Law, State Bar of California; Quadrant Chambers, London.
1. Regulation 44/2001 (Brussels I Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters).
2. Regulation 1215/2012 (Brussels I Regulation (Recast)).The rulings of the ECJ (see infra, fn.3) on Art.5 of the Brussels I Regulation will apply equally to Art.7 of the (Recast) Regulation. However, in order to preserve textual consistency with the decision in Granarolo (infra, fn.4) and the other cases cited, this article will continue to refer to the rules in their Art.5(1) and (3) incarnations.
3. Court of Justice of the European Union; previously the Court of Justice of the European Communities.
TACIT CONTRACTUAL RELATIONSHIPS
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