Web Analytics
Cases integrating chapter 8 10, 12 and 13 Case 1 Mrs. Savan, a stewardess, is employed by Ryanair, an Irish airline, and habitually carries out her work in Eindhoven (The Netherlands). In her employment contract there is a valid clause stating that on the employment contract Irish law applies and that the Irish courts have jurisdiction. Her employment contract also contains a unilateral amendment clause. This means that Ryanair can transfer the employee to another place of employment, without the consent or the employee. This clause is allowed under Irish law but not under Dutch law. However, the inclusion of a unilateral amendment clause is not in conflict with a Dutch mandatory law. This means that the choice for Irish law does not result of depriving Mrs. Savan from the protection afforded to her by Dutch law. Ryanair decides to transfer Mrs. Savan from Eindhoven to Dublin (Ireland). Mrs. Savan does not want to go to Dublin and starts legal proceedings against Ryanair. Are the following statements correct? Motivate your answer! a. In this case the Dutch court does not have jurisdiction. Mrs. Savan can only go to an Irish court. b. In this case Dutch law applies to the contract. Suppose: there is neither a choice of law nor a choice of jurisdiction clause in the employment contract c. What court(s) would have jurisdiction in this case? d. The law of what country applies to the employment contract? Case 2 – Atlas Air Service (Brussels I/Rome I/CISG) Air ChartersEurope Ltd, a Dutch company, requests Atlas Air Service AG, a German company, to repair aircraft in the Netherlands. The aircraft are repaired in the Netherlands. Invoices of € 16,692.98 are not paid by Air ChartersEurope Ltd. Payment should have been made into the account which Atlas Air Service AG has with Deutsche Bank in Berlin. Atlas Air Service AG starts legal proceedings to get paid. In the contract between the parties there is no choice of law or jurisdiction clause. In an oral conversation which took place when they concluded the contract, both parties agreed that, in case of legal problems, a Dutch court of law would have jurisdiction. a. What court(s) has/have jurisdiction in this case? b. What law applies to the contract? c. Does the CISG apply to the contract? Case 3 – Powergen (Brussels I/Rome I/CISG) Powergen is a company which produces and sells battery chargers. Powergen has its headquarters in Arezzo in Italy. Powergen sells battery charges to a Dutch company, Crepa Ltd. The first business contact between Crepa Ltd and Powergen takes place at the headquarters of Powergen in Italy, further orders being sent to Mr Lambrizzi, a representative of Powergen in the Netherlands, who is also located in the Netherlands. All the sending of order confirmations and invoices, as well as the production and delivery of the products ordered by Crepa Ltd are done by the head office in Italy. In 2012 Crepa Ltd receives a shipment of battery chargers which are not all functioning correctly. Upon first usage by a Crepa client, the chargers have exploded. Powergen credits Crepa Ltd for the dysfunctional chargers, but Crepa refuses to pay a total of € 6,000 for other shipments of chargers which are functioning quite well. Powergen starts legal proceedings against Crepa Ltd. In the contract there was no choice of law or choice of court. a. Explain why the Dutch court is competent is this case. According to Crepa Ltd, the CISG does not apply in this case because it is not an international contract. Crepa Ltd placed the orders with Mr Lambrizzi, a representative of Powergen in the Netherlands. b. Is the statement by Crepa Ltd correct, i.e. does the CISG apply in this case?Use the correct article of the CISG when answering the question. c. Does Italian or Dutch law apply to the contract? d. Why is the question of whether Dutch or Italian law applies to the contract relevant, even if the CISG applies to the contract? In the order confirmations from Powergen, it is mentioned under ‘general sales conditions’, among others, that: ‘For any further dispute the only competent court is the Court of Arezzo.’ In this procedure, Crepa Ltd refuses to pay for the Powergen deliveries because they have a lot of damages from the exploding battery chargers. The amount of damages is high because they have not make any profit on the transaction and lost clients. When Powergen starts the procedure against Crepa Ltd, Crepa Ltd counter-claims for these damages. The Dutch court has the following reasoning regarding the counter-claim: ‘The procedure in the counter-claim is a separate proceeding in respect of which court will have to examine separately whether it is competent to deal with the claim. The Dutch court does not consider itself entitled to hear the counter-claim because Powergen has invoked the jurisdiction clause which is printed on the order confirmation which contains a valid choice within the meaning of Article 23 Brussels I Regulation. This clause is entered in a form which accords with practices which are usual between the parties. During the relationship between Powergen and Crepa Ltd, Powergen always used order confirmations stating this clause and Crepa Ltd has never protested against it and tacitly agreed to this clause, and the choice of law therefore has become part of the ongoing commercial relationship between the parties. The exclusive jurisdiction of the court to decide the counterclaim by Crepa Ltd, is in accordance with this choice, the court of Arezzo in Italy. This exclusive choice of court stands in the way the application of Article 6 under 3 EEX.’ e. Explain why the reasoning of the court regarding the counterclaim is incorrect.
Cases integrating chapter 8 10, 12 and 13 Case 1 Mrs. Savan, a stewardess, is employed by Ryanair, an Irish airline, and habitually carries out her work in Eindhoven (The Netherlands). In her employment contract there is a valid clause stating that on the employment contract Irish law applies and that the Irish courts have jurisdiction. Her employment contract also contains a unilateral amendment clause. This means that Ryanair can transfer the employee to another place of employment, without the consent or the employee. This clause is allowed under Irish law but not under Dutch law. However, the inclusion of a unilateral amendment clause is not in conflict with a Dutch mandatory law. This means that the choice for Irish law does not result of depriving Mrs. Savan from the protection afforded to her by Dutch law. Ryanair decides to transfer Mrs. Savan from Eindhoven to Dublin (Ireland). Mrs. Savan does not want to go to Dublin and starts legal proceedings against Ryanair. Are the following statements correct? Motivate your answer! a. In this case the Dutch court does not have jurisdiction. Mrs. Savan can only go to an Irish court. b. In this case Dutch law applies to the contract. Suppose: there is neither a choice of law nor a choice of jurisdiction clause in the employment contract c. What court(s) would have jurisdiction in this case? d. The law of what country applies to the employment contract? Case 2 – Atlas Air Service (Brussels I/Rome I/CISG) Air ChartersEurope Ltd, a Dutch company, requests Atlas Air Service AG, a German company, to repair aircraft in the Netherlands. The aircraft are repaired in the Netherlands. Invoices of € 16,692.98 are not paid by Air ChartersEurope Ltd. Payment should have been made into the account which Atlas Air Service AG has with Deutsche Bank in Berlin. Atlas Air Service AG starts legal proceedings to get paid. In the contract between the parties there is no choice of law or jurisdiction clause. In an oral conversation which took place when they concluded the contract, both parties agreed that, in case of legal problems, a Dutch court of law would have jurisdiction. a. What court(s) has/have jurisdiction in this case? b. What law applies to the contract? c. Does the CISG apply to the contract? Case 3 – Powergen (Brussels I/Rome I/CISG) Powergen is a company which produces and sells battery chargers. Powergen has its headquarters in Arezzo in Italy. Powergen sells battery charges to a Dutch company, Crepa Ltd. The first business contact between Crepa Ltd and Powergen takes place at the headquarters of Powergen in Italy, further orders being sent to Mr Lambrizzi, a representative of Powergen in the Netherlands, who is also located in the Netherlands. All the sending of order confirmations and invoices, as well as the production and delivery of the products ordered by Crepa Ltd are done by the head office in Italy. In 2012 Crepa Ltd receives a shipment of battery chargers which are not all functioning correctly. Upon first usage by a Crepa client, the chargers have exploded. Powergen credits Crepa Ltd for the dysfunctional chargers, but Crepa refuses to pay a total of € 6,000 for other shipments of chargers which are functioning quite well. Powergen starts legal proceedings against Crepa Ltd. In the contract there was no choice of law or choice of court. a. Explain why the Dutch court is competent is this case. According to Crepa Ltd, the CISG does not apply in this case because it is not an international contract. Crepa Ltd placed the orders with Mr Lambrizzi, a representative of Powergen in the Netherlands. b. Is the statement by Crepa Ltd correct, i.e. does the CISG apply in this case?Use the correct article of the CISG when answering the question. c. Does Italian or Dutch law apply to the contract? d. Why is the question of whether Dutch or Italian law applies to the contract relevant, even if the CISG applies to the contract? In the order confirmations from Powergen, it is mentioned under ‘general sales conditions’, among others, that: ‘For any further dispute the only competent court is the Court of Arezzo.’ In this procedure, Crepa Ltd refuses to pay for the Powergen deliveries because they have a lot of damages from the exploding battery chargers. The amount of damages is high because they have not make any profit on the transaction and lost clients. When Powergen starts the procedure against Crepa Ltd, Crepa Ltd counter-claims for these damages. The Dutch court has the following reasoning regarding the counter-claim: ‘The procedure in the counter-claim is a separate proceeding in respect of which court will have to examine separately whether it is competent to deal with the claim. The Dutch court does not consider itself entitled to hear the counter-claim because Powergen has invoked the jurisdiction clause which is printed on the order confirmation which contains a valid choice within the meaning of Article 23 Brussels I Regulation. This clause is entered in a form which accords with practices which are usual between the parties. During the relationship between Powergen and Crepa Ltd, Powergen always used order confirmations stating this clause and Crepa Ltd has never protested against it and tacitly agreed to this clause, and the choice of law therefore has become part of the ongoing commercial relationship between the parties. The exclusive jurisdiction of the court to decide the counterclaim by Crepa Ltd, is in accordance with this choice, the court of Arezzo in Italy. This exclusive choice of court stands in the way the application of Article 6 under 3 EEX.’ e. Explain why the reasoning of the court regarding the counterclaim is incorrect.