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

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Contractual Disputes regarding Virtual Enterprises 19
some or all of the individual members of the VE? Both the Brussels and
Lugano Conventions and the Jurisdiction Regulation (in their respective Article
6) permit a defendant, where such person is one of a number of defendants,
to be sued in the courts for the place where any one of such defendants
are domiciled, qualified with the proviso in the Jurisdiction Regulation that the
claims are so closely connected that it is expedient to hear and determine them
together to avoid the risk of irreconcilable judgments resulting from separate
proceedings. One should here remember that, to be able to sue all the partners
in contract, the customer or supplier should have entered into a contract either
directly with all of them or with their legally authorised representative.
Where the VE has an online presence and conducts business through a
website by, eg, selling goods or providing services online, the VE would be
considered to be an information society services provider falling within the
EC Electronic Commerce Directive [Directive on electronic commerce, 2000].
The VE, as a service provider, is obliged under Article 5(1) of the Directive to
provide easy, direct and permanent access to recipients of its services and
competent authorities of, inter alia, its name and the geographic address at
which it is established. Therefore, where the VE is an information society
service provider in terms of the Electronic Commerce Directive, the aforementioned
information that must be provided to its customers will assist such
customers to identify at least one possible place where to sue – ie, the country
where it states that it is established.
4.2 Matters Relating to Contract
Another alternative place where a claimant may sue the virtual enterprise in
matters relating to contract is in the courts for the place of performance of
the obligation in question. This arises from a special rule relating to contracts
in both the Brussels and Lugano Conventions (Article 5(1)) and the Jurisdiction
Regulation (Article 5(1)(a)).
The first question that arises is what is meant by “matters related to a
contract”. One could envisage disputes arising either between the VE members
in terms of the VE Interchange Agreement, or between the VE and an
external party (ie, not a VE member) who had contracted with it (eg, a customer
or a supplier). The phrase “matters related to a contract” has been
interpreted by the European Court of Justice (ECJ) which declared that the
word “contract” here should be given an independent meaning in the sense
that it should be interpreted independently of the national law of one state
[SPRL Arcado v SA Haviland, 1988].
Disputes relating to the existence of the agreement over which the claim is
based are considered to fall within Article 5(1) [Effer v Kantner, 1982]. Such