Volume 03 Issue 08-2023
15
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
08
Pages:
15-20
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
In the framework of this article, we will consider the general trend of developments related to the determination of
international jurisdiction in the countries of the European Union. In the article, views of foreign scientists, including
Kropholler, Zoller, Geimer, Pocar and other scientists were studied. Also, German Civil procedure code, Italian Private
international law, and The Netherlands Civil procedure code were analyzed. Important theoretical conclusions were
made on the issues analyzed in the article and a number of proposals were presented.
KEYWORDS
Private international law, international civil procedure, international jurisdiction, civil procedure, private law.
INTRODUCTION
In Germany international jurisdiction is determined
based on the rules of domestic jurisdiction contained in
Articles 14-40 of the Code of Civil Procedure (
Zivilprozesordnung) (hereinafter - ZPO) [1] . This rule is
similar to the principle of double functionality
(doppelfunktionalitat ), which is also used in our civil
procedure code. Although international jurisdiction is
determined by the rules of domestic jurisdiction,
according to Krofoller, the norms arising from the
place of property and the contract were developed in
order to determine international jurisdiction[2].
is determined based on the domicile ( Wohnsitz ) for an
individual , and the place of the administrative div (
Sitz ) for a legal entity. The domicile of an individual is
determined by the lex fori. According to Article 7 of the
German Civil Code ( Burgerliches Gesetzbuch)
(hereinafter - BGB) , the permanent place chosen by a
person for his main activity is his domicile [3] .
According to it, a person can have several domiciles. In
order to establish international jurisdiction over
persons who do not have a domicile , international
jurisdiction is determined based on the place where the
person is registered ( habitual residence ) .
Research Article
INTERNATIONAL JURISDICTION IN EUROPEAN UNION COUNTRIES
Submission Date:
August 05, 2023,
Accepted Date:
August 10, 2023,
Published Date:
August 15, 2023
Crossref doi:
https://doi.org/10.37547/ijlc/Volume03Issue08-04
Allayorov Jahongir Toshpolatovich
Associate Professor Of Tashkent State University Of Law, Doctor Of Philosophy In Law, Uzbekistan
Journal
Website:
https://theusajournals.
com/index.php/ijlc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
Volume 03 Issue 08-2023
16
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
08
Pages:
15-20
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
Determination of international jurisdiction in claims
against a legal entity is based on the criteria of the
location of the legal entity's management div, and in
cases where the management div is located on the
territory of Germany, the legal entity is registered and
operates on the basis of the criteria [4 ] . According to
the German Companies Act, a legal entity may have its
management div in several places [5] . If the
structural structure of a legal entity, i.e. branch,
representative office and other types of representative
bodies are located on the territory of Germany, and the
claim arises from the activities of these representative
bodies, international jurisdiction may be established.
An important condition is that the claim must arise
from the activity of the representative div. It does
not matter whether the activity of the representative
div is carried out on the territory of Germany or
outside it [6] . It should be noted that international
jurisdiction cannot be changed on the basis of a
contract in order to protect the rights of consumers in
banking and credit relations [7] . According to German
law, the representative div of a foreign legal entity is
not required to be registered on the territory of
Germany, the operation on behalf of a foreign
company is the basis for establishing international
jurisdiction [8] .
For the determination of international jurisdiction
based on the location of the property of the defendant
( forum patrimonii ), it is used in cases where the
defendant does not have a domicile, a management
div, or a representative div in Germany, and the
parties have not entered into contractual relations.
Forum patrimonii, according to its function , is used to
protect the weaker party ( forum actoris ) and the
forum actoris considered as a form. The fact that the
value of the property does not depend on the value of
the claim can make it difficult to focus on the
defendant's property located abroad . In addition, due
to the fact that the property is located on the territory
of Germany, the right to establish international
jurisdiction has caused objections [9] . The German
Supreme Court indicated that international jurisdiction
should be determined when the forum patrimonii is
inextricably linked with the location of the dispute
court [10] . This decision, despite the explanations of
the Constitutional Court about the guarantees
established in the German Constitution and
compliance with international law norms [11], among
scientists, the opinion that the authority to
independently solve the issue of coexistence of judges
is contrary to the German Constitution [12] . Such
controversies may in the future lead to changes in the
rules of international jurisdiction and to reforms in the
framework of international civil procedure.
In Italy, the issues of international jurisdiction were
regulated by the Code of Civil Procedure until the Law
"On Private International Law" adopted in 1995 [13] .
Before the adoption of the new law, Italian courts, like
French courts, considered international litigation
based on the criterion of nationality. At first glance,
this rule, which was established to protect Italian
citizens from the Italian courts, also showed its
negative aspects. For example, according to the rule of
that time, only the conclusion of the contract in the
territory of Italy, the Italian national courts were
considered competent to consider the issue, and the
relations that did not have factors of connection with
Italy other than the conclusion of the contract brought
the international jurisdiction of the national courts. The
reform of private international law in Italy introduced
the actor sequitur forum rei general rule, abolishing
nationality-based
international
jurisprudence
.
According to the first part of Article 3 of the Italian Law
on "Private International Law", "Italian courts have
international jurisdiction when the defendant is
domiciled or resident in Italy, or when his
Volume 03 Issue 08-2023
17
International Journal Of Law And Criminology
(ISSN
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2771-2214)
VOLUME
03
ISSUE
08
Pages:
15-20
SJIF
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(2021:
5.
705
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5.
705
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(2023:
6.
584
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OCLC
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1121105677
Publisher:
Oscar Publishing Services
Servi
representative is authorized to appear in court on
behalf of the defendant" [ 14 ] . In order to establish
international jurisdiction, the representative must be
authorized to participate in the Italian court on behalf
of the defendant in the dispute, the authority must be
specified in writing, and the defendant cannot
participate in the court because he does not have a
domicile or residence in Italy. According to Italian law,
a representative must be distinguished from a
representative office or branch of a legal entity. The
existence of a legal entity's representative office or
branch in the territory of Italy is not the basis for
establishing international jurisdiction [15] . In addition,
according to the second part of Article 3 of the Italian
Law "On Private International Law", other grounds for
determining international jurisdiction are determined
based on the Brussels Convention. The rules of
domestic jurisdiction shall apply on grounds not
specified
in
this
Convention.
Notably,
the
determination of rules of international jurisdiction
based on the criteria of domestic jurisdiction did not
exist until the reform of Italian private international
law. In Spain, which is similar to the Italian legal system,
the rules of private international law were reformed in
1985. As a result of this reform, the determination of
international jurisdiction was completely copied
directly from the rules of the Brussels Convention and
abolished the rules of imperialismo jurisdiccional ,
which were in force until 1985. These rules were
determined by the judge (like the precedents in the
English system) and created uncertainty and conflict of
rules in the determination of international jurisdiction.
Nowadays, the reference of the rules of international
justice to the Brussels Convention is the cause of
justified criticism [16] . The main argument of the critics
is that despite the fact that the Brussels Convention is
perfectly structured, it is primarily an international
agreement and cannot fully cover the national legal
system. In our opinion , it may be difficult to establish
international jurisdiction in relation to relations not
covered by the international agreement when the rules
defined in the international agreements are introduced
directly into the national legislation .
When talking about the reform of the law on
international justice, we believe that it is necessary to
analyze the trends in the Netherlands. Following the
2001 reform of the Netherlands, the rules on
international jurisdiction have undergone some
changes. Before the reform, the rules of international
justice in the Netherlands were determined by the
rules of domestic justice (dual functionality). As a result
of the expansion and complexity of cross-border
relations, special rules for determining international
jurisdiction have been developed [17] . This reform
arose, on the one hand, from the fact that the principle
of dual functionality does not correspond to the
requirements of the time, and on the other hand, from
the need to adapt national legislation to the provisions
of the Brussels Convention. According to the old code
of civil procedure, a plaintiff domiciled in the
Netherlands could apply to the Dutch courts in cases
complicated by a foreign element ( forum actoris ),
such claims could only be dismissed on the basis of the
inconvenient court rule ( forum non conveniens ) [18]
New adoption It was determined that the rule of forum
actoris is applied only to family relations [19] of the Civil
Procedure Code . In the case of treaty international
jurisdiction, it was determined that the parties would
be allowed to hear the dispute in the Netherlands court
if there were valid reasons [20] . This was done to
prevent artificial overcrowding of cases in Dutch
courts. In the case of obligations arising from
contracts, if the obligation is performed or is to be
performed in the territory of the Netherlands, the
courts of the Netherlands are competent to deal with
disputes arising from these contracts. This rule was
Volume 03 Issue 08-2023
18
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
08
Pages:
15-20
SJIF
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FACTOR
(2021:
5.
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(2022:
5.
705
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(2023:
6.
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)
OCLC
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1121105677
Publisher:
Oscar Publishing Services
Servi
considered new to Dutch law and was not considered
relevant until the forum actoris rule was abolished.
international private law , in particular to the institution
of international justice, is also observed in Swiss
legislation. The Law "On Private International Law",
which came into force on January 1, 1989, regulates
issues of international jurisdiction [21] . The
determination of international jurisdiction is based on
the principle of interdependence between the court
and the claim. According to its structural structure , the
rules for determining international jurisdiction differ
from the Brussels Convention and other legal systems
belonging to the family of continental law .
Accordingly, the matter to be regulated is set out in
each section separately. For example, the third section
is devoted to marriage issues and regulates the issue of
choice of law and international jurisdiction, while the
ninth section separately regulates the issue of choice
of law and international jurisdiction in obligations [22]
. Another point to note is that the rule of the court of
the place where the defendant is located ( actor
sequitur forum rei ) applies subsidiarily to the special
rules. That is, when there is no basis for determining
international jurisdiction according to special rules , the
general rule - the rule of the location of the defendant
is applied. This logic shows the difference that in other
continental legal systems, the general rule is applied
first, and when it does not exist , other special rules are
applied subsidiarily. At the same time , it is not allowed
to apply the contractual international jurisdiction in
family matters. In addition , when the Swiss courts are
selected for contractual international jurisdiction , it is
established that the court will refuse to consider the
case in cases where the dispute does not have an
inherent
connection
with
Switzerland.
The
determination of nexus will take into account whether
one of the parties is domiciled in Switzerland or carries
on business there, or whether the relationship is
governed by Swiss law. There are four binding factors
to consider in disputes arising out of a contract.
According to this article , if the defendant has a
domicile in Switzerland, if he does not have a domicile,
he is a resident of Switzerland, if he is not a resident, if
the place of business is Switzerland, if there is no place
of business, the place of performance of the contract
is Switzerland. These binding factors are used
subsidiarily in the sequence. The rules of determining
international jurisdiction on the basis of prohibition (
forum arresti ) have been preserved in the new
legislation. In order to determine international
jurisdiction based on the rule of forum arrest , the
property should be subject to the law "On Debt and
Bankruptcy" [23] . The fact that the property is in the
territory of Switzerland alone is not a basis for
establishing international jurisdiction [24] . There is no
minimum requirement for the value of the leased
property, and the issue can be considered meaningfully
even on the part that exceeds its value. Of course,
when determining international jurisdiction on the
basis of seizure of property , the claimant must take
into account the risk of non-enforcement of the
judgment in other countries . Such an approach can be
seen in the explanations of the Swiss Federal Tribunal
[25] .
In recent years, the issue of determining international
jurisdiction in solving disputes complicated by the
foreign element arising from civil-legal relations on the
Internet has become increasingly important . The
Internet, by its very nature, exists in a space where
different legal systems apply without recognizing state
borders. There are different approaches to
determining the competent state courts to resolve
disputes between persons located in different
countries when entering into mutual civil relations. For
example, in the European Union, a traditional
approach is used to determine international
Volume 03 Issue 08-2023
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VOLUME
03
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Pages:
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Oscar Publishing Services
Servi
jurisdiction in resolving disputes arising on the Internet
. As a general rule, the court of the responsible location
is competent to consider a dispute arising on the
Internet. Determining the location of the defendant
may cause difficulties in determining the location of
legal entities, while it does not cause difficulties for
individuals. According to the general rule, the place
where a legal entity is registered is its place of
residence. According to Article 63 of the Brussels
Convention , the center of administrative management
and place of business of a legal entity is also considered
as its location. In addition to the general rule of
determining international jurisdiction, there are also
special rules. According to a special provision (Brussels
Recast, Article 7) , it is possible to establish
international jurisdiction at the place of performance
of the obligation. According to the product supply
contract, the place where the product is delivered or
should be delivered, the court of the place where the
service is to be provided or should be provided in
relation to the provision of services is competent to
hear the case. This rule does not differ from the rules
of international jurisdiction that apply to relations that
arise offline. The problem may arise if there are more
than one place where the product is to be delivered or
where the service is to be provided according to the
contract. This problem can be divided into two types:
firstly , different obligations are performed in different
places, and secondly , if the same obligation must be
performed in different places , it is a question of which
court has jurisdiction over which place . The first type
of problem can be solved in two ways: the first way,
according to each obligation in every place where it
should be performed, the second way, when one of the
two obligations is the main obligation, the place of
performance of the main obligation is the basis for
determining international jurisdiction. If the place of
delivery is in a different part of the same country in the
case of delivery of products to different places within
the framework of one obligation, the court chosen
based on the discretion of the plaintiff (domestic
jurisdiction), if the place of delivery is several countries,
the court of the state most integrally connected with
the contract is competent to hear the case. As a
general rule, the most integral relationship is
determined on the basis of economic criteria. When
the organic connection with two countries is the same,
the court is chosen according to the plaintiff's choice.
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1.
J.
Kropholler,
Internationales
Privatrecht:
Einschlieslich
der
Grundbegriffe
des
Internationalen Zivilverfahrensrechts (2006), p.
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2.
Kropholler, Internationales Privatrecht , p. 610 .
3.
Zoller and Geimer, Kommentar ZPO , § 3, p. 104 .
4.
Schack, Internationales Zivilverfahrensrecht, § 251,
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5.
Musielak, Commentary ZPO , § 12, p. 84.
6.
Baumbach and Lauterbach, ZPO , § 10, p. 101 .
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Nagel
and
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Ch. Mollers, Internationale Zustandigkeit bei der
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A. von Mehren, Recognition and Enforcement of
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BGH 2 July 1991, BGHZ (Vol. 115), p. 90 .
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BverFG 12 April 1983, BverFGE 64, 1, 20 .
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Grothe, Exorbitante Gerichtszustandigkeiten, p.
686 .
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A. Giardina, Note; Italy, Law Reforming the Italian
System of Private International Law, 35
International Legal Materials (1996), r. 760-782 .
14.
Montanari and Narcisi, Conflict of Laws in Italy .
Volume 03 Issue 08-2023
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15.
Pocar,
ʼ
Le role des criterias de competence
judiciaire de la Convention de Bruxelles dans le
nouveau droit international prive italien
ʼ
, p. 359 .
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Alonso-Cuevillas
Sayrol,
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compencia
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Nieuw Wetboek van Burgerlijke Rechtsvordering
https://www.trans-lex.org/600900/_/new-
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In
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Explanatory Report Proposal DCCP , p. 30 .
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P.
Kuypers,
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G. Broggini,
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F. Knoepfler, Ph. Schweizer et al. , eds., Droit
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Carrer, Arnold et al. , Switzerland's Private
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Schnyder and Lip.owitsch, Intern at ionales Privp.-
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Krafft , ``Exorbitante'' Gerichtsstande , p. 97-98.
