布鲁塞尔法案关于合同有关的管辖权问题研究
布鲁塞尔法案关于合同有关的管辖权问题研究
朱凯
【关键词】Brussels 1 Regulation， Jurisdiction
【全文】
I. INTRODUCTION
The Brussels Convention and the Lugano Convention facilitate the unification of the private international law of the European Community in a significant extent. These two conventions promote the free movement of the judgment in the Member States and help the recognition and enforcement of the judgment made by the court of the Member States. However, the conventions are not an ideal measure to solve all the problems in practice. By the development of the European Community and the closer connection among the European states, although the interpretation for these two conventions by the European Court of Justice solves most of the issues arise during the application of these two conventions in some extent, the practice requires the rules on private international law of the European Community go further and be more uniform.
On the other hand, in the contract field, the provisions of the Brussels Convention and the Lugano Convention raise the problems as following: 1. What is the obligation in question? Is that the obligation of the contract or the obligation which is invoked by the plaintiff in support of the claim? 2. If it refers to the later one, how to decide the obligation when the plaintiff is pleading more than one obligation? 3. If the obligation in question is a payment obligation, the place of the performance of which is not the closest connection place in the contract, should the court of that place still has the jurisdiction? There are some other problems which might not be so obvious but in some extent also cause difficulties in the application of the convention.
Considering these issues, in the matters relating to a contract, the Council Working Party added some new words in the Article 5(1) of the Brussels Convention and reached the following Article 5(1) for the Brussels 1 Regulation at last:
