Technical terms bear an equal and uniform interpretation

There is an obvious practical benefit if the provisions of a Convention bear, to the extent possible, a meaning which is common and uniform across the States in which the Convention applies. It would rather diminish the practical effect of the scheme for there to be a single text, but one which meant something different in every state in which it applied; and as the Preamble makes clear, the parties to it desired ‘to ensure as uniform an interpretation as possible of this instrument’. The aim is furthered by legislative measures and judicial methods.

Legislation first. In the context of the Brussels Regulation the need for a uniform interpretation was met by giving national courts the power and the duty to make references to the European Court for a preliminary ruling on the proper interpretation of the Regulation. In the context of the Lugano Convention it was met by the Second Protocol which provided that ‘any court applying and interpreting this Convention shall pay due account to the principles laid down by any relevant decision concerning the provision(s) concerned or any similar provision(s) of the 1988 Lugano Convention and the instruments referred to in Article 64(1) of the Convention rendered by the courts of the States bound by this Convention and by the [European] Court’.

Judicial method has led to the development of autonomous, or independent, meanings for the basic definitional terms used in the legislation: this is, beyond doubt, the most characteristic feature of the jurisprudence relating to the interpretation of the Convention.

The point may be illustrated by a simple example.¹’ Suppose a Swiss manufacturer sells goods to a French buyer, who sells them on to a French sub-buyer. Suppose the goods are not fit for the purpose for which they were originally sold, and that the sub-buyer wishes to sue the manufacturer. Suppose that in Swiss law, as in English law, any action would lie in tort, whereas in French law the claim may be regarded as contractual.^[1] If in the particular case jurisdiction is to be based on Article 5 of the Convention, it is necessary to ask whether the matter is one relating to a contract or to tort. Whatever the answer is, it is not ‘contract if the claim is brought in France, but tort if it is brought in Switzerland’. Instead, the jurisdictional question has to be answered by use of an independent, or uniform, or autonomous, or anational, or delocalised, definition of the terms: not by recourse to national law.

To take another example, suppose a house buyer sues the surveyor who was negligent in reporting its condition and value to the mortgage lender, but who was well aware that the report could be shown to the intending buyer who had in any event paid for the survey. As a matter of English domestic law, such an action would be seen as lying in tort. But in other systems it may be seen as contractual in nature, on the footing that the contract between mortgage lender and surveyor was also made for the benefit of (and the service paid for by) the house buyer. It may, therefore, be wrong to assume too quickly that for special jurisdictional purposes the action is not to be regarded as a ‘matter relating to a contract’ and as falling within Article 5(1).

To take a third example, if commercial partners fall out, one accusing the other of disloyalty and unfair competition, national law may permit a claim to be framed as one in tort or delict, from which it may be argued that special jurisdiction may be available under Article 5(3) of the Convention. But if the complaint could have been pleaded as a claim for breach of contract, or if it is necessary to plead the contract in order to establish the unlawfulness of the acts complained of, the matter will be one relating to a contract for the purposes of special jurisdiction over a defendant domiciled in another Lugano State, and hence within Article 5(1), in spite of the view taken by domestic law.^[2]

• [1] See C-26/91 Jakob Handle & Co GmbH v Soc Traitements Mécano-Chimiques des Surfaces [1992] ECR 1-3967 (a case on the Brussels Convention). 2 Warranties of quality being considered to pass with title to the goods on a transfer of the goods: not such a crazy idea, when you reflect on it. It is said that the French courts now accept that the claim of the sub-buyer is not contractual: Soc Donovan Data Systems Europe v Soc Dragon Rouge Holding (Cass 6 July 1999), [2000] Rev crit DIP 67. But the general point is still valid. 3 In other words, the defendant is sued in a Lugano State other than that in which he has a domicile.
• [2] C-548/12 Brogsitter v Fabrication de Montres Normandes EURL EU:C:2014:148, [2014] QB 753. But for the casting of needless doubt, see C-59/19 Wikingerhof GmbH & Co KG v Booking.com BV EU:C:2020:950. 2 C-14/08, [2009] ECR 1-5439. The case concerned the interpretation of the EU Service Regulation, Regulation 1348/2000; the passage from which the quotation is taken is [48]. This observation appeared first in C-433/03 Got: Leffler v Berlin Chemie AG [2005] ECR 1-9611, [45]. 3 Indeed, it is not the approach taken to the construction of international treaties by the English courts.