Litigation Bodenheimer Herzberg legal

Where parties are from more than one jurisdiction, and where disputes are to be decided by state courts, it is paramount to determine at an early stage which court is or will be competent to hear any disputes that may arise.

Parties may elect a court to hear the dispute through a forum selection clause (also known as choice-of-court clause). Parties’ freedom to contractually select a forum to hear their dispute is principally recognised by national law, EU law (in particular, the Brussels I Regulation), and international treaties such as the Hague Convention on Choice of Court Agreements.

Where the parties to a cross-border dispute have not elected a competent court to hear their dispute, the jurisdiction of a court will be determined by the domestic procedural law, and by any international conventions or supranational regulations applicable in the forum chosen by the claimant-party.

Within the EU, Regulation (EU) 1215/2012 (the Brussels I Regulation) will determine the jurisdiction of national courts for civil and commercial matters where the parties have not already selected a forum. The Brussels I Regulation determines, for instance, that

  • in principle, an EU-domiciled defendant may be sued at its place of business (actor sequitur forum rei);
  • additionally, in the case of sale of goods or of provision of services, the courts of the place where the goods were or should have been delivered or where the services were or should have been provided shall be competent to hear any disputes;
  • in matters relating to tort, delict, or quasi-delict, the court of the place where the harmful event occurred shall be competent to hear the dispute;
  • in proceedings concerning the registration or validity of industrial property, the court of the place in which the deposit or registration has been applied for shall be competent to hear the dispute;

Specific rules of international jurisdiction exist with regard to certain types of disputes, e.g. in relation to property actions, or in business-to-consumer (B2C) or employment litigation.

Even if the defendant is not domiciled in the EU, the Brussels I Regulation may apply and can lead to the jurisdiction of the courts in an EU Member State. This is the case in a number of circumstances, in particular, if there is a choice-of-court agreement, in case exclusive jurisdiction is given under Art. 24 of the regulation, or a matter concerning EU-based employees, consumers or branches of the non-EU domiciled defendants..

At BODENHEIMER HERZBERG, we are proud of our cross-border litigation practice: we routinely handle the German and/or EU aspects of transnational disputes. With our multi-jurisdictional approach – our attorneys are admitted in six jurisdictions –, we are also ideally placed to litigate before international courts and tribunals, and have done so, inter alia, before the General Court of the European Union, and the European Court of Justice.

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