1 Abstract: Regulation of international jurisdiction of courts in Brussels Ibis Regulation The master thesis deals with the regulation of international jurisdiction of courts regulated by Brussels Ibis Regulation. The main aim of the master thesis is to analyse the topic of prorogation, in particular the general definition of the prorogation agreement and the regulation of prorogation in the Brussels Ibis Regulation, including prorogation agreements concluded with weaker contracting party. The thesis is divided into 4 chapters, which are further divided into subchapters. The first chapter introduces the Brussels Ibis Regulation and defines its substantive, temporal, personal and territorial scope of application. The presence of an international element is also required for the application of Brussels Ibis Regulation. The thesis deals with the rules of general, alternative, special, exclusive, agreed international jurisdiction and of submission to international jurisdiction. It also describes the hierarchy of these rules. The second chapter focuses on the topic of prorogation, which is essential for the thesis. It clarifies the concept of the prorogation agreement, explains its importance and character. It deals with the effects of the prorogation agreement and divides prorogation agreements into exclusive...

This thesis examines the special head of jurisdiction for contractual matters in Article 7(1) of the Brussels Ibis Regulation. Particularly, the thesis aims to establish how the concept ‘matters relating to a contract’ is understood for the purposes of Article 7(1). In applying Article 7(1), the seized court must first determine whether the contract is one for the sale of goods or for the provision of services, for which the rule provides autonomously defined places of performance in subparagraph (b). If not, the court has to identify the obligation forming the basis of the legal proceedings for the purposes of subparagraph (a). Subsequently, the court has to apply its rules of conflict of laws rules and determine the place of performance for that obligation in accordance with the designated law. As regards ‘matters relating to a contract’, this expression is the point of departure for the application of Article 7(1) and has an autonomous definition. Essentially, ‘contract’ refers to a situation in which there is an obligation freely assumed by one party towards another. The thesis examines how this definition operates to characterize claims or rights arising out of representation, assignments, pre-contractual dealings and company law. Furthermore, the thesis examines the requirement that the matter must be one ‘relating to’ a contract, with special notice to two recent CJEU cases concerning the identity of the parties to the contract vis-à-vis the parties to the dispute. In conclusion, it is submitted that the CJEU’s expansion and application of the autonomous concept of contract do not necessarily serve the objective of predictability, which ultimately risks impeding the facilitation of the sound administration of justice.

This thesis aims to analyze whether the alternative EU forum loci solutionis of Article 7 (1) of the Brussel Ibis Regulation is applicable to Software Contracts. This is done by analyzing and accounting for the structure, purpose and problems of the application of BIbis Article 7 (1) to Software Contracts, by using a fictive case to highlight the particular problems regarding these types of contracts. Since two types of contracts are specifically stated in Article 7 (1) (b): sale of goods and provision of services, the thesis finds that Software Contracts may be characterized as either of these with the autonomous criteria established by CJEU case-law, or as another type of contract under Article 7 (1) (a). In the second step of localization in the method established by CJEU case-law, the four identified places of performance for Software Contracts are: (i) the place of the upload; (ii) the place of the download; (iii) the place to which the service provider has a special connection; and (iv) the place to which the buyer has a special connection. By approaching this issue de lege ferenda, a technology neutral method is first proposed for resolving the issue of characterization. This technology neutral method is further proposed for the following localization issue of identifying the place of performance for Software Contracts under the forum loci solutionis provision in BIbis Article 7 (1), where the place of performance for Software Contracts characterized as sale of goods is the place of download. Respectively, the place of performance for Software Contracts for provision of services under BIbis Article 7 (1) (b) is the domicile of the service provider.

The EU jurisdictional scheme, known as the “Brussels Regime”, confers competence to national courts to adjudicate over international matters. The main rule in Article 4(1) of the Brussels Ibis Regulation sets out that the defendant should generally be sued in the courts of the Member State where he is domiciled. For certain subject matters, the scheme allows the action to be brought elsewhere. The raison d’être is to provide an adequate counterbalance to the one-sided rule of Article 4(1). Articles 7(1) and (2) enable the claimant to launch the suit, “in matters relating to a contract”, at the court of the Member State where the contractual obligation was to be fulfilled, and, in “matters relating to tort”, in the courts for the place where the harmful event occurred. Whether to invoke Article 7 is entirely the claimant’s choice, but the final decision on its interpretation is vested in the Court. Thereby, the manner in which the Court views the provisions will effectively decide the extent of the claimant’s choice to invoke so-called special jurisdiction. It also means that greater emphasis on special jurisdiction will reduce the importance of the main rule in Article 4. Conversely, if the Court were to interpret Article 7 narrowly, its intended effect within the system would be denied. In both cases, the balance between Articles 4 and 7 has been upset. In the former case, the claimant is favoured because of the increased possibilities to choose the forum for the dispute, while in the latter case, the defendant is favoured because he retains the advantage of litigating in his home turf. The starting point for this essay is this very idea of a purported balance between litigants’ interests in EU cross-border litigation. The thesis analyses whether the Court’s case-law on general vis-à-vis special jurisdiction has transitioned from being generally defendant-friendly to claimant-friendly. It is argued that already from the first judgments rendered on the original Brussels Convention in 1976, increasingly more disputes have been launched at special fora, which has amounted to a claimant-friendly scheme. It is also argued that this development has been at the expense of the defendant. Greater choice for the claimant means in turn that the defendant’s ability to foresee before what courts he may be sued has been largely impaired. The thesis highlights how this imbalance is the result of inherent challenges in the Brussels Regime, particularly in relation to how the relevant connecting factors are designated. It is proposed that the unwanted effects of the Court’s practice as well as the shortcomings of the scheme itself are to be considered in the Commission’s evaluationof the Brussels Ibis Regulation, which is presently in the works.