Reproduced with permission from the Cornell Review of the Convention on Contracts for the International Sale of Goods (1995) 51-94

(. . .)

[Comments on jurisdiction and venue]

The CISG does not deal with procedural issues and therefore contains no rules concerning jurisdiction and venue for an action. For German courts, jurisdiction and venue issues are governed and determined by the relevant provisions of the Zivilprozeßordnung (ZPO) and the European Community's Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (EC Convention) [OLG Koblenz 17 September 1993].[232]

However, jurisdiction and venue can depend on the applicable non-procedural law, and then the CISG is relevant indirectly. For example, under ZPO Section 29 and Article 5(1) of the EC Convention, a claim can be filed at the Erfüllungsort (place where performance did or should have occurred). In this respect, it is important that under the CISG contract payments are frequently due at the seller's place of business.[233] Therefore, the seller can file a claim for payment in the jurisdiction where his place of business is located.

The Court of the European Community has recently confirmed jurisdiction in the locale of the seller's place of business under the EC Convention [Custom Made Commercial Ltd. v. Stawa Metallbau GmbH 29 June 1994].[234] Although this decision concerned ULIS, the same rationale applies to the CISG. This result, however, is not very convincing, since it seems unfair that the buyer can be sued in the seller's country. While this unfair result is a consequence of the CISG drafters' unwillingness to interfere with national procedural statutes,[235] the CISG is not the source of the problem. Procedural provisions like ZPO Section 29 and Article 5(1) of the EC Convention are the problematic sources.

Unfortunately, the courts have even tried to extend the application of CISG Article 57. According to the OLG Düsseldorf, Article 57 applies not only to contractual payments, but to all other demands for the payment of money, such as damages claims [OLG Düsseldorf 2 July 1993].[236] This allows the creditor to file the claim for payment in the jurisdiction encompassing his place of business. It is doubtful that this application of Article 57 is correct since one could argue that there is no separate place of performance for damages. In general, the place where the duty should have been performed ought to govern.[237] For example, if the seller has not delivered the goods, the place of performance (and the venue) should be the same for a claim demanding specific performance and for a damages claim.

(. . .)

Go to entire text of Karollus commentary

FOOTNOTES

* Professor of Law at the University of Bonn, Germany, from 1992 to February 1995. Currently, Professor of Law at the University of Linz, Austria. Address: Institut für Handels-und Wertpapierrecht, Universität Linz, A-4040 Linz-Auhof, Austria, Europe.

(. . .)

232. European Communities Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, Sept. 27, 1968, 8 I.L.M. 229 [hereinafter EC Convention]. For a contractual agreement on jurisdiction under Article 17 of the EC Convention and a cross-action and waiver of lack of jurisdiction under Article 18 of the EC Convention, see Judgment of Sept. 17, 1993, OLG Koblenz, 1993 RIW at 935.

233. CISG, supra note 4, art. 57(1)(a).

234. Case C-228/92, Custom Made Commercial Ltd. v. Stawa Metallbau GmbH, 1994 RIW 676 (1994).

235. See Honnold, supra note 151, at 589-90.

236. Judgment of July 2, 1993, OLG Düsseldorf, 1993 RIW at 845-46. See Piltz, supra note 52, at 1106.

237. See Huber, supra note 86, at 425-26.

(. . .)

Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography