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Web-Sites, Establishment and Private International Law

THE CONCEPTS of “establishment” and “place of business” are of considerable importance in modern European private international law. According to Article 2 of EC Regulation No 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (the so-called Brussels I Regulation)1, a person domiciled in a Member State must, irrespective of nationality, be sued in the courts of that Member State, but there are a number of exceptions. One such exception, stipulated in Article 5(5) of the Regulation, provides that a person domiciled in a Member State may, at the option of the plaintiff, be sued as regards a dispute arising out of the operations of “a branch, agency or other establishment”, in the courts for the place in which the branch, agency or other establishment is situated. Although it does not say so explicitly, Article 5(5) seems to have in mind only an establishment of the defendant, not of the plaintiff. The existence of a branch, agency or other establishment is relevant also according to the Regulation’s special rules on jurisdiction in matters relating to insurance2 and jurisdiction over consumer contracts3, but these rules cannot be dealt with in this short paper. An establishment may, of course, serve as a basis for jurisdiction even pursuant to national jurisdictional rules when the Brussels I Regulation does not apply, such as when the defendant is not domiciled in any of the Member States.4