Legal Document Translation Services into European Languages
We’ve blogged about professional legal translation and interpreting services in the context of international mass tort litigation. The European Union (EU) has a very different approach to the law of torts as compared to the US. Whereas in the US the law of torts is rather well developed, in the EU uncertainty dominates. This was very clear in the recent European Court of Justice (ECJ) decision in the case of Melzer v MS Global.
In this case, Melzer, who resided in Berlin, was solicited as a client by the company Wertpapier Handelsunternehmen (WWH), a company with its registered office in Dusseldort. WWH opened an account for Melzer with the brokerage MF Global UK Ltd, which is located in London. The company traded in stock market futures on behalf of Melzer in return for agreed upon fees. Melzer brought a claim against MF Global UK before the Dusseldorf courts claiming that MF Global should pay him damages equivalent to the difference between what he had paid out and what he had received in return for these transactions. According to his claim, these damages amounted to EUR 171,075.12 plus interest. Melzer’s argument was that he had not been sufficiently informed about the risks of future trading. WWH was not made a party in the proceedings.
The Dusseldorf court first rejected the claim on the basis of lack of jurisdiction, stating that the wrong had in fact taken place in Berlin – where Melzer resided. The court did, however, state that it did have jurisdiction based on the legal theory of locus delicti commissi, arguing that Article 5(3) Brussels I and the German Civil Code allowed for jurisdiction when there were joint participants and a common purpose.
Specifically, according to paragraph 830 of the German Code:
1. Where several persons have caused damage by the commission of an unlawful act undertaken in common, each of them shall be liable for that act. That is also the case even where it is impossible to determine which of the persons involved caused the damage by his act.
2. Instigators and accomplices shall be treated as joint participants of the act.
Thus, the attribution of WWH’s actions to MS Global, according to the court, gave it jurisdiction based on Article 5(3) and thus turned to the ECJ on the issue of whether, ‘In the context of jurisdiction in matters relating to tort or delict under Article 5(3) of Regulation [No 44/2001], where there is cross-border participation of several persons in a tort or delict, is reciprocal attribution of the place where the event occurred admissible for determining the place where the harmful event occurred?’
Interestingly, there is little law on this issue. In fact, there is no mention of any rule on attribution for acts committed in tort found in the ECJ’s Jurisdiction Regulation. There are, however, numerous arguments against allowing such attribution from creating extra ‘fora’.
As a general rule, in the EU jurisdiction is found with the place of domicile of the defendant. Although there are some exceptions, and various other rules that trump it, overall it remains the steadfast rule in the EU. As the ECJ regularly states, exceptions to Article 2’s general rule must be strictly interpreted. The fear is that too broad of an interpretation will lead to the creation of what the court sees as being ‘too many potential jurisdictions’. More so, such a strict interpretation creates predictability and reliability in the area of choosing jurisdiction.
A restrictive interpretation also serves the Regulation’s purpose, as emphasized by the ECJ, of predictability and reliability. A party may otherwise end up being pursued in courts in which it could not reasonably have foreseen to be sued.
Thus, as to jurisdiction for tort issues in the European Union, Article 5(3) of Regulation No 44/2001 will be interpreted as meaning that it does not allow the courts of the place where a harmful event occurred which is imputed to one of the presumed perpetrators of damage, who is not a party to the dispute, to take jurisdiction over another presumed perpetrator of that damage who has not acted within the jurisdiction of the court seized.