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

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Contractual Disputes regarding Virtual Enterprises 21
a VE Interchange Agreement, it may not always be easy to determine what
“the obligation in question is” as there might be a number of different obligations
in the contract which may be due to be performed in different states.
Thus, eg, a VE may be contacted to design and set up a website and to promote,
maintain and upgrade it for a certain period. Each of these services
may be performed in a different country. Which is the obligation in question
here? The ECJ in Shenavai v Kreischer [1987] held that the judge dealing
with the case should identify the principal obligation on which the claimant’s
action is based and jurisdiction is then to be determined in accordance with
this. However, a problem may arise when it is not possible to identify the
principal obligation, in which case different obligations could end up being
subject to the jurisdiction of different Member States.
As mentioned above, the amendments to Article 5(1) of the Regulation
have now somewhat clarified the place of performance with regard to sale of
goods and the provision of services.
4.3 B2C Contracts
It is presumed that, in practice, most of the customers of a VE will be businesses
(B2B contracts). However, one cannot absolutely exclude the possibility
of a VE entering also into some business-to-consumer (B2C) contracts,
and so the special rules regarding these types of contracts will also be briefly
examined in this paper.
Special grounds of jurisdiction apply to B2C contracts under the Brussels
and Lugano Conventions, and these rules have been updated in the Jurisdiction
Regulation. The main rule in both instruments (Article 16 of the Regulation,
Article 14 of the Conventions) is that consumers can only be sued in their own
jurisdiction. However, consumers have the option of suing either in their own
jurisdiction, in the other party’s jurisdiction, or in another jurisdiction by
agreement in terms of Article 17 of the Regulation or Article 14 of the Brussels
and Lugano Conventions. At the same time, as discussed above, although difficulties
related to the question of “domicile” of a VE may be avoided by the fact
that the consumer may sue in the state of his or her domicile, problems may
still arise for the consumer in trying to identify whom to sue.
The new Article 15(1)(c) of the Jurisdiction Regulation makes it clear that
the main rule in Article 16 applies to consumer contracts concluded over the
Internet. This provides that jurisdiction will be established if “by any means”
a business directs its commercial or professional activities to the Member
State of the consumer’s domicile or to several Member States including that
Member State. Though this rule applies to businesses such as VEs which use
the Internet to promote and provide their goods and services to consumers in