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CISG CASE PRESENTATION

Germany 11 June 2007 Appellate Court Dresden (Airbag parts case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/070611g1.html]

Primary source(s) of information for case presentation: Case text

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Case identification

DATE OF DECISION: 20070611 (11 June 2007)

JURISDICTION: Germany

TRIBUNAL: OLG Dresden [OLG = Oberlandesgericht = Appellate Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 3 U 336/07

CASE NAME: German case citations do not identify parties to proceedings

CASE HISTORY: 1st instance LG Chemnitz (2 HKO 3024/05) 26 January 2007 [affirmed]; 3rd instance BGH 9 July 2008

SELLER'S COUNTRY: Germany (plaintiff)

BUYER'S COUNTRY: Italy (defendant)

GOODS INVOLVED: Airbag parts


IHR headnote

Reproduced from Internationales Handelsrecht (4/2008) 162

"1. Delivery clauses do not indicate the place of performance in case of a contract of sale involving the carriage of the goods or generally when the place of performance is not expressly indicated by the parties or other circumstances, the place of performance is not to be determined by the law applicable to the contract.

"2. For contracts containing elements of both a service and a purchase contract, the place of performance and thereby the place of jurisdiction, is to be determined by distinguishing between performing the contract by rendering a service or by the transfer of title to goods."

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 3 ; 8 ; 31 [Also cited: Articles 14 ; 18 ]

Classification of issues using UNCITRAL classification code numbers:

3A ; 3B [Goods to be manufactured; Services preponderant part of obligation];

8C [Interpretation of party's statement or other conduct: interpretation in light of surrounding circumstances];

31A [Place for delivery: contracts involving carriage]

Descriptors: Services ; Intent ; Delivery ; Jurisdiction

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Editorial remarks

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (German): Internationales Handelsrecht (4/2008) 162-166

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation)

Queen Mary Case Translation Programme

Appellate Court (Oberlandesgericht) Dresden

11 June 2007 [3 U 336/07]

Translation [*] by Jan Henning Berg [**]

Edited by Institut für ausländisches und internationales
Privat- und Wirtschaftsrecht der Universität Heidelberg
Daniel Nagel, editor
[***]

JUDGMENT

  1. The appeal of the [Seller] is dismissed

  2. The [Seller] has to bear the costs of the proceedings.

  3. The judgment is provisionally enforceable. The [Seller] is entitled to prevent enforcement by depositing a security in the amount of 120 % of the amount to be enforced, as long as the [Buyer] does not provide security in the same amount.

  4. Further appeal (Revision) is admitted.

FACTS AND CASE HISTORY

Plaintiff [Seller] is a company that has its seat in the city of Plauen in Saxony, Germany. Defendant [Buyer] is a company which has its seat in Italy. The present dispute between the parties concerns the question of international jurisdiction of the District Court (Landgericht) Chemnitz, which was petitioned by [Seller] in the first instance.

[Buyer] supplies the international car manufacturer Fiat with airbags. The [Buyer] purchased component parts for the airbags from [Seller] on the basis of five contracts. [Seller] was supposed to manufacture the parts at its factory in Oberlungwitz, which is located within the area of the District Court Chemnitz. [Buyer] cancelled these contracts with effect from the end of 2003. [Seller] asserts that this amounted to a breach of contract, because it had been agreed that the contracts would run until 2006 and 2007, respectively. [Seller] calculates that it has suffered damages of Euros [EUR] 3,032,349.50 for the time between January 2004 and April 2007 as a consequence of the cancellation of the contracts. Additionally, [Seller] seeks a declaration to the effect that [Buyer] was also obliged to compensate for the loss which is to be expected between May 2007 and August 2007. The respective claims are based on the provisions of the CISG.

[Buyer] argues that the action was both inadmissible and not justified. Italian courts had exclusive jurisdiction to adjudicate the case, which followed from a corresponding choice of forum and the contractual place of performance and, in any event, from [Buyer] being seated in Italy. Four of the contracts had been concluded without a time limit and could therefore be terminated at any time. A duration until 31 December 2003 had been agreed on between the parties with respect to the fifth contract. The damage claimed by [Seller] would be excessive. Moreover, any damages were to be reduced to zero because [Seller] had not mitigated its losses by way of a conclusion of cover contracts. Finally, [Seller]'s claim for interest is excessive.

[Buyer] also assumes that the CISG is applicable.

The parties have agreed on English as the language of the contracts. The respective contracts have been concluded as follows:

1. Fiat 186 (Fiat Multipla)

By letter dated 28 November 2000, [Seller] made [Buyer] an offer for the conclusion of a framework contract concerning the sale of (side) airbag components for the Fiat Multipla, which provided, inter alia:

"The price is based on the following premises: ... Delivery free Breed Colleferro, every 14 days ... Any price increase for which C.T. is not responsible will lead to a corresponding price adjustment. This also applies to increases in transport costs ..."

This offer was accepted by [Buyer] by fax of 4 January 2001. In addition, the parties orally agreed that mass production should commence in July 2001.

On 4 May 2001, [Buyer] sent [Seller] a so-called "purchase order". It contained the following English passage at the bottom, adjacent to the field where the signatures were to be applied:

"This order is placed subject to the conditions set out on this page and the general conditions overleaf."

[Buyer]'s standard terms have been printed on the reverse side of this purchase order in Italian. Recital no. 9 of these terms determines an exclusive jurisdiction of the competent court in Turin, Italy, to decide any disputes arising out of the order and/or the standard terms.

[Seller] -- through its employee K.U., who had been involved in the previous negotiations -- sent the signed purchase order back to [Buyer]. The following handwritten note was added to the purchase order:

"There is no possibility to keep this date, because we don't have the necessary production documents and drawings."

2. Lancia 839 SW (Lancia Lybra station wagon)

A first description concerning the components to be delivered by [Seller] for this model was provided by [Buyer] in its letter of 4 January 2001. After the parties had orally reached a consensus concerning the conditions of the intended framework agreement, [Buyer] sent a so-called "contract purchase order" on 12 March 2001 and confirmed the oral agreement. This contained under the caption "general commercial terms": "Delivery free our factory in Colleferro".

On 23 March 2001, [Buyer] sent [Seller] a purchase order, which once again contained on its front side inter alia an English reference to [Buyer]'s standard terms, which were printed overleaf in Italian. The form and content of the reference and the terms themselves were identical to those contained in the purchase order of 4 May 2001. [Seller] sent the signed purchase order back to [Buyer] through its employee C.V., who had been involved in the contract negotiations.

3. Lancia 839 SD (Lancia Lybra sedan)

In this respect, the parties proceeded in the same way as set out above, at no. 2. [...]

4. Fiat 192-3D (Fiat Stilo)

In the same way, an initial description of the performances to be effected by [Seller] in respect to the Fiat Stilo was provided by [Buyer]'s letter of 4 January 2001.

After the parties had orally determined the conditions of their framework agreement, [Buyer] sent a contract purchase order on 3 July 2001 and confirmed the oral agreement. This contract purchase order contains the following passage, a few lines above the signature: "All other conditions which have been stipulated remain valid and unaltered."

This contract also contains a delivery clause which is identical to the one reproduced above, at no. 2.

5. Lancia Y 843

In respect to this contract, the parties generally agree that an order was placed concerning the mass production of (side) airbag components by way of oral agreement in summer 2003 and that mass production commenced in September 2003. However, the duration of this agreement and the issue of whether [Buyer]'s standard terms have become effective in respect to this oral agreement are in dispute between the parties.

JUDGMENT OF THE COURT OF FIRST INSTANCE

The District Court (Landgericht) Chemnitz decided to hear the case, at first, only in respect to the question of admissibility of [Seller]'s action and then dismissed the action. It held that Italian courts had exclusive jurisdiction to consider the case.

POSITION OF THE PARTIES ON APPEAL

Position of [Seller]

The judgment rendered by the District Court [...] has been contested by [Seller] on appeal [...].

[Seller] alleges -- just as in the first instance proceedings -- that the District Court (Landgericht) Chemnitz has jurisdiction pursuant to Art. 5 No. 1 Council Regulation (EC) No 44/2000 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (hereafter: Brussels I Regulation), irrespective of which of its alternatives applied to the present case. It had not been agreed between the parties that Italian courts should have exclusive jurisdiction. Moreover, it had not been determined that [Buyer]'s seat would be the place of performance.

[Seller] requests that

Position of [Buyer]

[Buyer] requests the dismissal of the [Seller]'s appeal. It argues in defense of the judgment rendered by the District Court and asserts that the parties had effectively conferred jurisdiction on Italian courts.

Reference is made to the judgment of the Court of First Instance, the written submissions of the parties in the course of the appellate proceedings and the protocol of the oral hearing on 11 June 2007.

REASONING OF THE APPELLATE COURT

II. [Seller]'s appeal is admissible but not justified. Jurisdiction to adjudicate this dispute lies with Italian courts. Therefore, the District Court was correct to hold that the action is inadmissible. The respective decision rendered by the sole Presiding Judge of the Chamber for Commercial Matters cannot be contested, cf. 349(2) No. 2 ZPO [*].

The jurisdiction of Italian courts follows in any event from Art. 2(1) Brussels I Regulation, and no different result can be derived from Arts. 22, 24, 23, 5 et seq. Brussels I Regulation.

      1. The Brussels I Regulation is relevant, because the action has been filed after its entering into force on 1 March 2002 (Art. 76 Brussels I Regulation), namely on 12 December 2005, and has been served on 6 February 2006 (Art. 66 Brussels I Regulation). Moreover, the present case touches upon the subject matter and territorial scope of the Regulation (Art. 1(1) and (3) Brussels I Regulation).

      2. None of the places of exclusive jurisdiction (ausschließliche Gerichtsstände) contained in Art. 22 Brussels I Regulation is present. The same applies to Art. 24 Brussels I Regulation. It is true that the relevant conduct is the submission of the statement of defense, and not the participation in the hearing (OLG [*] Frankfurt, IPRax 2000, 525). However, [Buyer] has already objected in its statement of defense to the international jurisdiction of German courts and, consequently, only argued on the merits as a precaution, which cannot be put to its disadvantage (BGH [*] NJW [*] 1999, 2442). This applies a fortiori to the new Regulation which is indicated by a comparison of the wording of Art. 24 second sentence Brussels I Regulation and Art. 18 second sentence of the former Brussels Convention (cf. also BGH IPRax 2006, 594 (595)).

      3. [Seller] has failed to demonstrate that German courts have gained jurisdiction by way of an agreement between the parties to that effect. Moreover, no such agreement is apparent in this case. Therefore, it cannot be argued on the basis of Art. 23 Brussels I Regulation that the court petitioned by [Seller] would have jurisdiction over this dispute.

      4. Instead, recourse must be taken to the types of special jurisdiction (besondere Gerichtsstände) in terms of Art. 5 et seq. Brussels I Regulation, where only the jurisdiction of the place of performance can be considered, Art. 5 No. 1 Brussels I Regulation.

This jurisdiction is relevant, because the damages claimed in the present case have arisen out of an early termination of the contracts and also qualify as a matter relating to a contract in terms of Art. 5 No. 1(a) Brussels I Regulation (ECJ [*] NJW 1989, 1424).

According to Art. 5 No. 1 Brussels I Regulation, it must be determined whether the contracting parties have determined the place where all obligations under their contract or the primary obligation subject to the dispute are/is to be performed. In the absence of such stipulation, the place of performance and, consequently, the jurisdiction for the contract is determined under No. 1(b), if the relevant contracts concern the sale of goods or the provision of services and this place of performance is located within the territory of a Member State. If this does not apply, the general rule of No. 1(a) must be considered, to the effect that the place of performance is determined pursuant to German private international law (BGH IPRax 2006, 594). In that case, the place of performance would be determined according to the CISG (Art. 3(2) EGBGB [*]) or, if the CISG is not applicable, according to German law (Art. 28(2) EGBGB).

            a) The parties have not reached an express agreement on the place where all obligations under the contract, or the relevant obligations for acceptance of the goods and payment of the purchase price by [Buyer], were to be performed. Such agreement cannot be derived from the individual delivery clauses as well. They do not concern the particular obligations for acceptance of the goods and payment of the purchase price, which are relevant for the present dispute. Insofar as the clauses identify the place where the characteristic performance under the contract is to be effected, it is solely relevant within the scope of Art. 5 No. 1(b) Brussels I Regulation. Any separate overriding agreement on a place of performance of all obligations owed under the contract cannot be established by these delivery clauses.

            b) Consequently, place of performance and jurisdiction of the contract need to be determined under Art. 5 No. 1(b) Brussels I Regulation, if the contracts at hand concern the sale of goods or the provision of services. The corresponding place of performance also embodies the damages claimed in this case (see in this respect OGH [*] IPRax 2004, 349 (350)).

If the present contract is concerned the provision of services, the international jurisdiction of the District Court (Landgericht) Chemnitz would be established. It would be important in this case that [Seller] was obliged to manufacture the airbag components, which [Buyer] refused to accept and pay for, at its German factory.

In the opinion of the Court, the result is different in case of an application of Art. 5 No. 1(b) first bullet Brussels I Regulation (sale of goods).

However, the difference does not already follow from the delivery clauses. A seller may deliver the goods by shipping or carrying. Since -- in the latter case -- even the international law on the sale of goods (Art. 31(a) CISG) determines the place of delivery to be at the seller's place, such delivery clauses are generally without bearing on the question of where the respective obligation is to be performed. In the present case, the first delivery clause agreed upon by the parties is contained in [Seller]'s letter of 28 November 2000. In this context, the clause forms part of the price calculation, which means that it has been perceivable for [Buyer] that the clause should only determine the allocation of costs but not the place of delivery. If [Buyer] -- in the following -- includes almost identical clauses in its contracts with [Seller], the former cannot reasonably expect that they will lead to agreements different from those established by virtue of the first delivery clause. [Buyer], who argues rather abstractly in this context, has failed to take this into account

It may remain undecided whether clauses like the ones at hand -- assuming that they govern the place of delivery -- are in themselves able to establish jurisdiction at that place or whether this is a question of contract interpretation on the basis that this place has not been expressly declared as the place of jurisdiction (in this way, e.g., Schlechtriem / Schwenzer / Huber / Widmer, CISG, 4th ed., Art. 31 margin number 92 with further references).

However, the OLG [*] Nürnberg has already convincingly reasoned (in its judgment of 21 July 2004, case docket 12 U 2384/03) that Art. 5 No. 1(b) first bullet Brussels I Regulation is geared to the place where the goods are handed over to the buyer or are supposed to be handed over. Otherwise, the purpose of the provision could not be achieved, which is to determine the jurisdiction according to simple and clearly-cut criteria. The respective place is located in Italy, since [Seller]'s CEO has confirmed before the District Court that the carrier who delivered the goods to Italy was to be commissioned by [Seller]. Therefore, the act of handing over of the goods to this carrier is not tantamount to a handing over to [Buyer].

The Court does not accept that this was in contradiction to the wording of the provision ("... the place ... where ..." instead of "... the place ... to which ..."). The above interpretation will conform to the wording of the provision if the words "to the buyer" are being added instead of "by the seller". Naturally, both of these interpretations are equally possible. In any case, nothing can be derived from the wording of the provision which could be used as an argument against the interpretation proposed above. Moreover, the wording of Art. 5 Brussels I Regulation in the languages of other Member States is said to allow for an interpretation "to which" (cf. in this respect Hager / Bentele, IPRax 2004, 73 (74)).

The Court holds that it is inappropriate to determine the place of performance according to the substantive law applicable to the contract in cases of contracts involving carriage of the goods or, generally, whenever no such place follows unambiguously from the agreements between the parties or other circumstances. It would contradict the autonomous approach embodied in Art. No. 1(b) Brussels I Regulation if this provision was reduced to places of performance which are determined expressly or impliedly by the parties. This result would also not be consistent with the addition "unless otherwise agreed", which is not limited to any express determination of the place of performance.

Finally, no other result can be derived from Art. 63(1) Brussels I Regulation. The fact that even German scholars offer a variety of approaches to Art. 5 No. 1(b) Brussels I Regulation, which at the end of the day lead to a jurisdiction at the seat of the seller, demonstrates that the Member State Luxembourg was well advised to opt for the reservation in order to guard itself against any unwanted outcome.

Even though this reservation may be qualified (with good reason) as a precautionary measure, it cannot be taken as an argument against the proposed interpretation for the purpose of determining the place of performance.

Consequently, it is without bearing to this dispute that -- assuming a contract of sale -- it has involved a carriage of the goods. It is equally irrelevant that it is concerned with claims which have not arisen out of a past delivery.

In the opinion of the Court, it is beyond doubt that the present case is concerned with claims arising out of sales contracts rather than service contracts.

The individual contracts oblige the parties to effect performances which are typical for contracts of sale, namely, to hand over and transfer property in goods against acceptance of the goods and payment of a purchase price. Indeed, they do contain service elements, because the contracts have obliged [Seller] to process the materials, procured from third-party suppliers, according to [Buyer]'s needs and deliver the product so manufactured to the latter.

However, the Court assumes that neither the Regulation nor other international bodies of law require that these agreements constitute service contracts in terms of Art. 5 No. 1(b) second bullet Brussels I Regulation. In contrast, such contracts generally qualify as contracts of sale, both under the CISG (Art. 3(1)) and under the EC Directive on the Sale of Consumer Goods (Art. 1(4)). Consequently, the jurisprudence relied upon by [Seller] in this context (inter alia BGH [*] NJW [*] 1994, 262 (263)) does not delineate contracts of sale from contracts for the provision of services.

In this context, [Seller]'s argument that the scope of service contracts should be interpreted broadly is of no avail. While this circumstance may be well-accepted, it requires a sound justification. In the opinion of the Court, such justification may follow from the desire to (finally) achieve a common European legal standard on the issue of jurisdiction established by way of contract (though, only with relevance to the most important types of contract). However, this argument also requires that the term "sale of goods" be interpreted broadly.

The Court does not accept the argument that sales and service contracts should be delineated -- possibly supported by Art. 3(2) CISG (delivery of goods / manufacture) -- according to the dominant performance under the contract (in this way: OLG [*] Köln, judgment of 14 March 2005, case docket 16 U 89/04). The difficulties and uncertainties of such delineation and the existing scope for interpretation are not compatible with the purpose of Art. 5 No. 1(b) Brussels I Regulation, which -- as set out above -- is to ensure that a jurisdiction can be determined with ease according to simple and clearly-cut criteria.

With respect to a delineation of both types of contracts for the purposes of a provision which determines jurisdiction pursuant to the place where the characteristic performance is to be effected, it must be examined whether the corresponding debtor performs his obligation by provision of the service or by transfer of possession and property in the goods. In the present case, the latter alternative applies. The act of manufacturing the goods is only the initial step of the performance of the contract and it is accomplished only at the time of transfer of property in the goods so manufactured.

The result would be the same even according to the above-mentioned concept which is geared to the dominant part of a contract. [Seller] bases its claims on the provisions of the CISG. Even [Buyer] assumes that this Convention applies at hand. This indicates that, according to the intent of both parties, the elements of sale dominate the contract, rather than the elements of service (cf. Art. 3(2) CISG). Therefore, the parties intended to conclude contracts of sale instead of contracts for the provision of services. This is further supported by the references to "contract purchase order" and "purchase order".

Given that, it is no longer appropriate to determine the dominant part of the obligations according to purely objective criteria, such as the commercial value of the individual steps in the course of performance. The corresponding intention of both parties must be of primary relevance, especially under the statutory provision in question which refers to what has been agreed upon between the parties.

Even if the approach taken by the Court was challenged as being systematically incorrect (because it refers to the success of the contractual performance and not to the performance itself), the contracts in question would still be qualified as contracts of sale. In that case, the delineation must be undertaken according to the dominant obligation under acceptance of the difficulties which are inherent to this approach and mentioned above.

In the light of these considerations, the Court finds it appropriate to consider "composite contracts" not under Art. 5 No. 1(a) Brussels I Regulation and thus under the law applicable to the contract, but under Art. 5 No. 1(b) Brussels I Regulation. A different approach would ignore the fact that the contracts in question contain the typical elements of a sales contract. Moreover, it would not be consistent with a broad interpretation of the terms "sale of goods" and "provision of services".

Therefore, the contracts concluded between [Seller] and [Buyer] qualify as contracts of sale. As a result, the District Court (Landgericht) Chemnitz does not gain jurisdiction by virtue of the contractual relationship. Irrespective of a choice of forum agreement -- which has been asserted by [Buyer] --, the general rule of Art. 2(1) Brussels I Regulation remains applicable and leads to a jurisdiction of Italian courts in conjunction with Art. 60(1) Brussels I Regulation. Therefore, the District Court was correct to dismiss the action in the absence of international jurisdiction.

Although it may remain undecided pursuant to the foregoing reasoning whether the parties have reached a choice of forum agreement in favor of the competent courts in Turin, they have not done so.

The Court does not identify any provision contained in the "purchase order" of March and May 2001 which would deviate from their previous agreements. The parties had already reached a general agreement on the individual price of the airbag components. Insofar, [Buyer]'s argument that the purchase order qualified as an offer to modify the contract is incomprehensible. [Buyer] has not demonstrated the existence of any circumstances which would indicate that the purchase order contained particular specifications or other, newly introduced terms with relevance in respect to the commercial relationship that deviate from the previous agreements. Instead, all circumstances support the view taken by [Seller], namely, that the purchase orders merely confirmed the price in the normal course of processing the concluded contracts. These confirmations served for the particular purpose to clearly indicate the point in time when new prices were to become effective according to a mechanism for price adaptation. However, since this mechanism had already been stipulated within the framework contracts and made reference to the commencement of mass production, any subsequent specific determination by the parties concerning the starting date for mass production does not constitute a modification of the contract but merely a corresponding factual determination.

Consequently, [Seller] could reasonably understand these letters as a confirmation of the terms which had already been agreed upon beforehand. Any intention on the part of [Buyer] to modify the contract could not have been reasonably identified by [Seller]. Irrespective of whether an inclusion of a choice of forum clause by way of standard terms must be considered pursuant to Art. 23 Brussels I Regulation or Arts. 14, 18, 8 CISG, no agreement has been reached concerning their inclusion into the contract. Both sets of rules require that the other party can reasonably identify that standard terms are supposed to become part of a contract (ECJ [*] NJW [*] 1977, 494; BGH [*] NJW 2002, 370 (371) = IHR [*] 2002, 14).

Therefore, it is not even decisive that [Buyer]'s legal representative had to admit during the oral hearing that the reference for inclusion of the standard terms is not located adjacent to the field intended for [Seller]'s signature and that the letters do not even contain such a field, but only one for [Buyer]'s signature.

With respect to exhibit B7 (Multipla), the handwritten reservation needs to be considered. In this case, any possible offer by [Buyer] to modify the contract has not even been accepted by [Seller].

On the basis of the above reasoning, [Buyer]'s standard terms have not been included in the contracts concerning the Fiat Stilo and Lancia Y. The contract of 3 July 2001 provides that standard terms should be valid only if they had already been agreed upon ("remain valid and unchanged"). The Lancia Y contract lacks any written choice of forum agreement. [Seller] may rely on this lack of form (Art. 23(1)(3)(a) Brussels I Regulation) under the assumption that there is an oral agreement as asserted by [Buyer]. A reliance on a lack of the required form infringes the principle of good faith only in cases where the terms on the choice of forum have already governed the previous contracts between the parties (cf. ECJ NJW 1977, 495, BGH MDR [*] 2004, 897).

III. The ancillary decisions are based on 97(1), 708 No. 10, 711(1) ZPO [*].

The Court admits further appeal on legal grounds (Revision). The question on determining jurisdiction on the basis of a contract in case of contracts involving carriage of the goods, respectively, in case of contracts for the supply of goods to be manufactured or produced under the Brussels I Regulation is of general legal importance ( 543(2)(1) No. 1 ZPO).


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Germany is referred to as [Seller] and Defendant of Italy is referred to as [Buyer]. Amounts in the uniform European currency (Euro) are indicated as [EUR].

Translator's note on other abbreviations: BGH = Bundesgerichtshof [German Federal Supreme Court]; ECJ = European Court of Justice; EGBGB = Einführungsgesetz zum Bürgerlichen Gesetzbuche [German Code on the Conflict of Laws]; IHR = Internationales Handelsrecht [German journal on international commercial law]; IPRax = Praxis des Internationalen Privat- und Verfahrensrechts [German Law Journal]; MDR = Monatsschrift für Deutsches Recht [German law journal]; NJW = Neue Juristische Wochenschrift [German law journal]; OGH = Oberster Gerichtshof [Austrian Federal Supreme Court]; OLG = Oberlandesgericht [German Regional Appellate Court]; ZPO = Zivilprozessordnung [German Code on Civil Procedure].

** Jan Henning Berg has been a law student at the University of Osnabrück, Germany and at King's College London. He participated in the 13th Willem C. Vis Moot with the team of the University of Osnabrück. He has coached the team of the University of Osnabrück for the 14th Willem C. Vis and 4th Willem C. Vis (East) Moot.

*** Ph.D. candidate Daniel Nagel has studied law at the University of Heidelberg and at the University of Leeds.

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