Reproduced with permission from Revue de droit uniforme/Uniform Law Review (1997) 385-395
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CISG and jurisdiction
The issue of jurisdiction clearly falls outside the scope of the Convention. Nevertheless, in an increasing number of cases the courts resort to CISG to ascertain whether or not they have jurisdiction.
The starting point has almost always been Article 5(1) of the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters (or Article 5(1) of the analogous 1988 Lugano Convention), stating that a person domiciled in a Contracting State may be sued, in matters relating to contracts, in the court for the place of performance of the obligation in question, and CISG has been applied to identify the place of performance of such obligation.
(a) Place for payment of the price
In cases where the obligation in question was the payment of the price, the courts solved the issue by referring to Article 57 CISG, according to which, in the absence of an agreement between the parties, the price must be paid at the seller's place of business (Article 57(1)(a)), or if the payment is to be made against the handing over of the goods or of documents, at the place where handing over takes place (Article 57(1)(b)).[57]
(b) Place of other payments
In a case decided by the Oberlandesgericht of Düsseldorf [58] involving a sales contract between a German buyer and a United States seller, the obligation in question was payment of damages. The court noted that as the Convention does not expressly settle the place of payment of damages, regard must be had to Article 7(2) CISG, and held that Article 57(1)(a) CISG (the relevant provision on place of payment of the price) is an expression of the general principle that obligations to pay are to be performed at the creditor's place of business (in the case at hand that of the German buyer).
Also of special interest is a recent decision by the Cour d'appel of Grenoble.[59]
The case concerned a contract for the delivery of equipment concluded between a German and a French company. Following delivery, the French company commenced an action claiming reimbursement of a surplus paid, but the German company contested jurisdiction of the French court. In order to determine its own jurisdiction in conformity with Article 5(1) of the 1968 Brussels Convention, the court had to determine the place of performance of the seller's obligation to return part of the price unduly paid by the buyer. The Convention, which governed the contract, is silent on this point. The court held that, contrary to German and French domestic law, the Convention (Article 57(1)) establishes that the place where payment must be made is the seller's place of business, and that this rule is usually interpreted as expressing the general principle that payment must be made at the creditor's place of business.
To support this reasoning, the court made an express reference to the decision of the Oberlandesgericht of Düsseldorf illustrated above, and pointed out that Article 6.1.6 of the UNIDROIT Principles lays down the same principle for international commercial contracts in general.
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FOOTNOTES
*
Professor, Law Faculty, University of Rome 1 "La Sapienza"; Legal Consultant, Unidroit.
**
Attorney in Rome; Research fellow, University of Rome 1 "La Sapienza".
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59. Cour d'Appel de Grenoble, 23 October 1996, cit. (. . .)
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