Performance of Characteristic Obligation in Multiple Places under Brussels I Recast Article 7(1)(b): Legal Certainty and Predictability over “a Close Connection”

Abstract

This article offers a critique of the teleological interpretation of the provision of Art. 7(1)(b) of the Brussels I Regulation Recast, adopted by the Court of Justice of the European Union, in relation to the cases where there are several places of performance. First, the nature of the jurisdiction rules in civil law is discussed and the main purpose of the special jurisdiction rules is identified. In this context, it is emphasized that legal certainty and predictability are the main objectives of the jurisdiction rules, while proximity is an instrument to achieve these main objectives. Secondly, the “principal place of performance” approach of the Court of Justice of the European Union regarding the provision of Art. 7(1)(b), in cases where there are several places of performance, is discussed. It is demonstrated that the Court of Justice of the European Union’s quest for the “closest link” is not in accordance with the spirit of the Recast. Aside from the difficulty of determining the principal place of performance; the search for the closest link being the basis of the determination of the principal place of performance is criticized. Additionally, this approach is remarkable as to how it is close to the application of “forum (non) conveniens” in common law. As a result, it is proposed to abandon the “principal place of performance” approach in cases where the place of performance is located in several Member States; and it is argued that it is necessary to recognize that the courts of several places of performance are competent.