Negotiorum Gestio and the Brussels Ibis Regulation
in Mankowski (ed.), Research Handbook Brussels Ibis Regulation, 2019 Forthcoming
30 Pages Posted: 3 Aug 2018
Date Written: July 11, 2018
Prima facie, the issue of jurisdiction over cases of negotiorum gestio seems straightforward: Claims that ensue from a person’s (intervenor’s) intervention in another’s (principal’s) affairs are civil matters and, as such, fall under the scope of the Brussels Ibis Regulation. Yet the question what kind of claim each side can bring forward, and what head of jurisdiction is most adequate, is more complex. The dispute does not concern the payment of remuneration claimed for the salvage of cargo or freight in the sense of Art. 7(7) Brussels Ibis Regulation. Besides, in most cases, the parties have not concluded a contract, there has been no tortious or delictual conduct, and no unjust enrichment can be found, implying that none of the other heads of special jurisdiction in Art. 7 Brussels Ibis Regulation applies. Ultimately, the inevitable conclusion seems to be that the case should be brought under Art. 4 Brussels Ibis Regulation – i.e., at the respective defendant’s domicile. However, as a closer look at the actual status of theory and practice suggests, this would be too simple a solution. This chapter’s analysis begins by providing an overview of the practical and scholarly debate on jurisdiction over negotiorum gestio claims. It then describes how the concept of “matters relating to a contract” in Art. 7(1) Brussels Ibis Regulation is in constant flux and has undergone a transformation toward a functional paradigm of contract-related issues. This part helps us understand that the concept of “matters relating to a contract” – despite what dominant court practice and scholarly theory contend – covers a significant part of the large array of negotiorum gestio claims. In addition, the chapter argues that in order to define the concept’s exact confines, an autonomous characterization of negotiorum gestio under the Brussels Ibis Regulation is required. In this regard, questions of inter-Regulation consistency and civil-procedural policy analysis come up. Finally, the chapter notes that it is possible to formulate a clear-cut concept for the Brussels system on jurisdiction over negotiorum gestio claims.
Keywords: Jurisdiction, Brussels Ibis Regulation, Contract Claims, Tort Claims, Negotiorum Gestio
JEL Classification: K12, K13, K15, K41
Suggested Citation: Suggested Citation