Jurisdiction EU Special II

The onus is on the Plaintiff to show that his claim falls within one of the exclusive jurisdiction rules.

The rules on exclusive jurisdiction cannot be the subject of a contrary agreement. Therefore even if there is a choice of law the court chosen must declare it has no jurisdiction where the subject matter relates to one of the exclusive jurisdiction rules.

The nature of the claim and the application of exclusive jurisdiction is ascertained from the proceedings, and in particular the statement of claim and other pleadings.

The Brussels 1 Regulation provides for exclusive jurisdiction for proceedings which have as their object rights in rem in immovable property or tenancies of immovable property. The courts of the state in which the property is situated have exclusive jurisdiction.  A right in rem is one which is binding as against the whole world and not just as between the parties to litigation. It is contrasted to rights in personam.

There is an exception relation to proceedings concerning tenancies for temporary private use for a maximum of six consecutive months where the tenant is a person and landlord and tenant are domiciled/resident in the same EU member state. In that latter case, that EU member state concerned also has jurisdiction.

 

Claims and proceedings which have as their object

the validity of the constitutionality or dissolution of companies or other legal persons or association of natural and legal persons or

the validity of decisions of their organs

lie exclusively with the courts of the state in which the company legal person concerned or Association has its seat. See members to place of incorporation.

 

 

The provisions do not apply simply because the decision of a company is involved. It relates to disputes in which a party challenges decisions under the applicable companies law or under the company constitutional documents.

 

Merely  because some issues  may touch upon the validity of decisions about the company’s organs/institutions does not cause the provision to apply. The nature of the proceedings as a whole must be considered including the statement of claim and defence.

 

The validity of an entry in a public register is subject to the exclusive jurisdiction of the state in which the register is kept.

 

The validity of patents trademarks designs and other documents required to be registered are subject to the exclusive jurisdiction of the courts of the member state of deposit or registration or application for registration.

 

Where a European patents is granted in respect of a particular state, that state has exclusive jurisdiction. This is without prejudice to the jurisdiction of the European Patent Office / court.

 

Exclusive Jurisdiction Cases

There are certain categories of cases which do not depend on the residence or domicile of the parties. In this case, the states of a particular state have exclusive jurisdiction.  This is due to the nature of the proceedings themselves.  The categories are as follows:

• most proceedings arising from land and buildings.
• most proceedings relating to companies and partnerships.
• proceedings relating to public registers.
• proceedings relating to intellectual property rights.
• proceedings in relation to the enforcement of judgment.

These rules are mandatory and cannot be changed by the agreement of the parties.

The rules in relation to the winding up of companies are determined by the place where they are formed.  Rules concerning the interpretation, operation and winding up of the company is determined by the place where the company is incorporated.

Property I

Because property is situated in a state, the Courts have long since held that rights to property or arising out of it must be heard in the courts of that jurisdiction (state). Claims relating to the extent, content, ownership and possession of properties and rights in relation to properties are covered.  It also covers protection and enforcement of the owner’s right.

A claim based on a contract for the transfer of land need not necessarily be governed by the laws of the country where the land is situated. However, it usually will be the best law to cover such contracts.  There are certain other limited exceptions.

Leases and tenancies of immovable property and disputes in relation to their existence and term must be heard in the country where the land is situated.  So, too, must claims for the recovery of the premises, rent, compensation and for damage caused by the tenant.

Disputes relating

• indirectly to the use of properties such as loss of holiday, enjoyment, travel expenses
• holiday contracts, which include not only accommodation but other services such as transport, reception insurance
• timeshare arrangements

need not necessarily be governed by the law of the place concerned.

Property II

Cases involving land or immovable property are not subject to the EU rules.  They are within the exclusive jurisdiction of the Court where the land or property is situated.  This rule applies to both non-EU and traditional rules.

It follows from the principle that immovable property is under the control of the Courts of the jurisdiction concerned that any order would be possibly ineffective and also that the local Courts are the best place to resolve the technical and complex issues that may arise about the title to land.

However, the rule does not apply to all matters connected with property.  A Court is obliged to enforce obligations in a contract or trust, even if this means ordering a party to transfer a right in foreign lands.  In this case, the Court is not adjudicating on the title or ownership of land but is making a personal order against the person concerned to take the requisite steps in the jurisdiction where the land is situated.  The Court would not order the person to do something in relation to the land, which a foreign country would not be entitled to do.

A Court may order specific performance in relation to a foreign land sale and may order the execution of a mortgage.  It may order the transfer of lands arising from fraud, fiduciary relationship or trust.  The orders do not affect the foreign land.  They are enforceable only personally against the defendants. These cases fall outside regarding title or possession of foreign buildings or lands.