Litigation Strategies What happens when there is no choice of forum Gustav Breiter IDI-conference Torino 2008

-. Jurisdiction clause: - Jurisdiction clause: exclusive jurisdiction (art 23 EC-regulation 44/2001) - If there is no clause: art 5 regulation 44/2001 applies Party which supplies the service: place of jurisdiction Who supplies the service in the legal sense?

Agency contracts: The place of the agent´s service is relevant Sales activity is the supplied service practical advantages, supporting also out-of-court settlements

Distribution contracts (I): Distributor has to promote business, build up the market, maintain after-sale-service etc. Supplier delivers the goods In my opinion: place of the distributor´s activity is relevant, he is the party rendering the service

Distribution contracts (II): Relevant jurisdiction: Austrian Supreme Court (February 17, 2005 – 6 Ob 148/04i): broker may claim before Austrian courts under art 5 No jurisdiction of the Supreme Court on distribution until now Germany: Oberlandesgericht Köln (January 12, 2007 – 19 U 11/07): art 5 applies for agents and distributors Other countries: unclear situation acc. to IDI-reports

Franchise: Franchisee does the sales activity, support by the franchisor should not be “service” in the legal sense No Austrian jurisdiction German literature referring to art 50 EC: wide definition: “service rendered by undertakings against payment”

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