Relevant facts. In the case at issue , SNC Doumer refrigerative supply ( Doumer refrigerative supply

Relevant facts. In the case at issue , SNC Doumer refrigerative supply ( Doumer refrigerative supply ) had renovation work carried out on a building complex located in Courbevoie (France), and had taken out insurance with Axa Corporate Solutions Assurance SA ( Axa Corporate ), whose registered office is at Paris, France. As part of that work, air-conditioning units each equipped with a number of compressors were installed, which had been:
The refrigerative supply two Italian defendant companies contested the jurisdiction of the Tribunal de grande instance refrigerative supply de Paris, refrigerative supply relying, in respect of Climaveneta, on an arbitration clause which appears in the distribution contract between it and Emerson, and, in respect of Refcomp, on a clause conferring jurisdiction on an Italian court which was included in the general terms of the sales contract concluded between itself and Climaveneta.
By contrast, the Cour d appel de Paris upheld the lower court’s rejection of the objection of lack of jurisdiction raised by Refcomp. It justified its decision stating that the rules governing special jurisdiction in matters relating to a contract laid down in Article 5(1) of Regulation No 44/2001 did not apply to a dispute between the sub buyer of goods and the manufacturer who was not the seller, since such a dispute concerns matters relating to tort or delict, which are governed refrigerative supply by the provisions refrigerative supply of Article 5(3) of that Regulation, and stated that Article 23 thereof refrigerative supply was no longer applicable since the action had no contractual basis.
The case went to the Cour de Cassation which in turn referred to the ECJ. Jaaskinen AG opined on 18 October. Precedent at the ECJ includes Handte , however only in minor aspect. The AG first of all referred to the fact that the Court of appeal’s findings are a result of French law on contracts:
‘the legal theory according to which, although the principle of privity of contract ordinarily applies, in that contracts are binding only on the parties who have signed refrigerative supply them, an exception is nevertheless made to that principle where there is a transfer of ownership, ownership being transferred to all the subsequent purchasers of the goods concerned together with all elements appurtenant to it. It follows that, in French law, the sub-buyer of goods may bring an action for damages against refrigerative supply the seller, or against any of the intermediaries who sold the goods or even directly against refrigerative supply the manufacturer of those goods’ (at 22).
He then proactively distinguishes his Opinion refrigerative supply (at 26-28), in particular refrigerative supply that the case at issue only concerns situations where the clause is enforced against the subrogated party, not by it. He would also seem to suggest that his Opinion may only hold where the chain is entirely ‘Union’ based: i.e. not where there is a contractual element with parties outside of the EU (however that might just be me reading too much into the ‘Community chain’ reference).
Generally, however, the AG firmly pulls the harmonisation card: choice of court agreements are exempt from the Rome I Regulation; there is therefore refrigerative supply no harmonised conflicts rule [see here for the proposals in the current review of the Regulation]; leaving it up to national conflict rules creates uncertainty and, as a method, has been abandoned by Regulation 44/2001 (under the old rules on special refrigerative supply jurisdiction for contracts, the Court had to find in Tessili that it could not force a European approach to characteristic performance; this has now changed for a number of usual suspects among contract categories).
The issue therefore needs to be given a European interpretation which, the AG suggests on the basis of the exceptional character of Article 23 and the protection of unsuspecting third parties, needs to be that
While the AG suggests that this is a solution along the lines of the current review of the Regulation, I disagree: that review will lead to a harmonised approach to which conflict of laws rules decide the issue, but not whether privity of contract extends to choice of court agreements. Neither and incidentally, as far as I am aware, does the European Commission proposal for a Common European Sales Law, address the issue of subrogation. refrigerative supply
This entry was posted on 23/11/2012, 7:58 AM and is filed under Conflict of Laws /Private international refrigerative supply law . You can follow any responses refrigerative supply to this entry through RSS 2.0 . You can leave a response , or trackback from your own site.
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