Lee A. Bygrave (red.) YULEX 2002 - Universitetet i Oslo

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16 Emily M Weitzenböck
creating a virtual enterprise (“VE”) between them, thereby providing one face
to the customer, wherever that customer is located. There is, therefore, very
often a strong international element present in the operation of a VE, from
which a number of private international law issues may arise, particularly
where there was no prior agreement on choice of law or jurisdiction in the
event of disputes.
When a dispute arises between parties located in different countries, the
first question that the party wanting to sue asks is where to sue, that is,
which country’s court is authorised to hear the case. Once the competent
court to hear the dispute has been identified, the next question that arises will
be to determine which country’s law is applicable to resolve the dispute.
Traditional private international law has looked to geography when determining
jurisdiction and selecting the applicable law. One would therefore look
at where the defendant is domiciled or where it has its place of establishment.
However, on the Internet, “place” matters less and less and it is often difficult,
in the absence of an express choice of law by the parties, to determine which is
the applicable law to govern a particular contractual relationship.
2 Research Approach and Sources
This paper discusses the need for choice of law and jurisdiction clauses in the
contracts between the VE and its customer, as well as in the agreement which
is entered into between the members of the VE themselves (hereinafter referred
to as the “VE Interchange Agreement”). This analysis is carried out by
examining what the position is where there is no express choice of law or
jurisdiction by the contractual parties; ie, what happens where the parties
have not expressly chosen the law in terms of which the contract is to be
construed and interpreted, or the place where disputes are to be lodged. Focus
is directed at the current situation in Western Europe.
More specifically, as regards jurisdiction, reference is made to Council
Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the
recognition and enforcement of judgments in civil and commercial matters
(hereinafter referred to as the “Jurisdiction Regulation”) which entered into
force on 1 st March 2002. As a regulation, this legal instrument is binding and
directly applicable with respect to all European Union (EU) Member States
except Denmark which has chosen not to adopt it. Accordingly, the Brussels
Convention on jurisdiction and the enforcement of judgments in civil and
commercial matters will continue to be used for jurisdiction rules where a
party is domiciled in Denmark. However, Denmark has expressed an interest