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

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18 Emily M Weitzenböck
4 Determining Jurisdiction in the Absence of Choice
4.1 Problems with the Application of the Criterion of Domicile to Virtual
Enterprises
As mentioned above, the first question that needs to be asked upon deciding
to sue is where to sue. The general rule in the Jurisdiction Regulation (Article
2) is that a person shall be sued in the courts of the place where such person
is domiciled. Article 2 uses the term “person” and the question that therefore
arises when the claim is against a VE is how one is to apply this rule to a VE
which, very often, does not have a separate legal identity from its members
[Van Schoubroeck et al, 2001]. The question of where to sue becomes linked
with that of whom to sue. Perhaps the answer lies in Article 60 of the Regulation
which clarifies the notion of domicile in respect of a company, other
legal person or “association of natural or legal persons”, by providing that
domicile is the place either where it has (a) its statutory seat or (b) central
administration or (c) principal place of business. It is submitted that a VE
might be considered to fall within the term “association of natural or legal
persons” since its members are either natural persons and/or legal persons. In
such a case, its domicile could be either where it has its central administration
or its principal place of business. However, it may still be difficult to identify
where a VE with members from different countries has its central administration
or principal place of business. Should one here focus on the key internal
actors of the VE such as the VE broker who is responsible for the marketing
of the VE and functions as the contact between the VE and its customer(s),
or should one look at where other actors such as project managers,
competence managers, etc. are based? What if these actors are based in
different jurisdictions?
It should be mentioned at this point that although the Brussels and
Lugano Conventions have the same concept of the domicile of a natural person
as the Jurisdiction Regulation, the domicile of a company or other legal
person or association of natural or legal persons is considered to be its seat.
To determine that seat, the court has to apply its rules of private international
law (Article 53) with the resultant risk that this concept of seat could
vary from one country to another.
The problem of where to sue the VE exists where the plaintiff is one of the
members of the VE and is magnified where the plaintiff is a supplier or customer
(i.e. not a member) of the VE. The latter, not being privy to the internal
set-up and organisation of the VE, is likely to find it harder to identify its
central administration or central place of business. Should one therefore sue