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

............................................................................
20 Emily M Weitzenböck
would be disputes regarding the existence of the VE Interchange Agreement
or the contract with its supplier or customer, and on which the claim is
based. As Cheshire and North [1999] observe,
“[c]ourts would be too easily deprived of jurisdiction if an allegation by
the defendant that no contract existed was sufficient to prevent the dispute
falling within Article 5(1). The court seised of the matter may end up
deciding that no contract exists but this is neither here nor there. All that
matters is that this court is satisfied that the requirements of Article 5(1)
are satisfied, including that it is a matter relating to a contract.”
Another issue that arises is where is “the place of performance of the obligation”
in the case of contracts involving VEs. The Jurisdiction Regulation
clarifies the meaning of place of performance by distinguishing between contracts
for the sale of goods and contracts for the provision of services in subparagraph
(b) of Article 5(1). In the case of sale of goods, the place of performance
of the obligation is the place where, under the contract, the goods
were delivered or should have been delivered. In the case of services, it is the
place where, under the contract, the services were provided or should have
been provided. Article 5(1)(c) states further that if subparagraph (b) is not
applicable, then subparagraph (a) would be.
Though the distinction between goods and services in Article 5(1) is welcome,
the Regulation contains no definition of either “goods” or “services”
and thus one may question under which category digitised products would
fall. One should here examine what rights accompany the transfer of the
digital product. Where the user is only given the right to download the work
onto a physical medium (eg, a CD or DVD) but has no right to make further
copies of the work, this contract has the characteristic of a licence contract
and not sale [Østergaard, 2000]. Thus, where the contract is for the provision
of a digital product via the Internet, the place of performance is presumably
where the product is downloaded (“provided”).
It should be noted that the Brussels and Lugano Conventions do not have
the above-mentioned clarification of the place of performance as regards the
sale of goods or the provision of services. These Conventions merely provide
that in matters relating to contract, a person may be sued in the courts for the
place of performance of the obligation in question. One would therefore have
to determine what “the obligation in question” is. In De Bloos v Bouyer
[1976], the ECJ held that Article 5(1) refers not to any obligation under the
contract but to the contractual obligation forming the basis of the legal proceedings,
the one which the contract imposes on the defendant, the nonperformance
of which is relied upon by the claimant. However, in the case of