개정루가노협약에 따른 계약사건의 국제재판관할

Abstract

In this article the author reviews issues on international jurisdiction (jurisdiction)

in matters relating to contract under the Lugano Convention revised in

2007 and draws lessons for the jurisdiction under the Conflict of Laws Act of

Korea, which was revised in 2001. Under the Lugano Convention, in matters

relating to a contract, a person domiciled in a contracting state may be sued in

another contracting state, that is, in the courts for the place of performance of

the obligation in question (Article 5⒧). The meaning of the place of performance

and that of the obligation in question have been the subject of much

discussion. Since the obligation in question means the obligation which forms the

basis of a lawsuit, lawsuits arising from the same sales contract could fall within

the jurisdiction of different states depending upon whether a seller or a buyer

files the suit as plaintiff. In addition, pursuant to the Tessili rule of the

European Court of Justice, the place of performance had to be determined by

the law applicable to the obligation in question designated by the choice of law

rules of the forum. Thus, in order to determine the jurisdiction issues, one had

to refer to the choice of law rules and the applicable law first. This position has

been criticized as complicating the determination of jurisdiction and as preventing

uniform interpretation of the Lugano Convention. In response to these critics the

Revised Lugano Convention has introduced an autonomous definition of the place

of performance, but only for contracts for the sale of goods and contracts for

the provision of services. The place of performance is based upon the concept of

characteristic performance of those contracts. However, the Revised Lugano...