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| A Dutch company sold yarns to a Swiss buyer. The seller gave to a bank (the plaintiff) a security interest in its right to payment of the price. After the bankruptcy of the seller, the plaintiff commenced an action against the buyer to recover the contract price. The buyer asserted that the Dutch Court had no jurisdiction to hear the case.
The Court applied Art. 5(1) of the EC Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Brussels 1968), under which a person domiciled in a Contracting State (i.e. the buyer) may be sued in the Court for the place of performance of the obligation in question (payment of price). The Court noted that in this case the date of conclusion of the contract was not clear. If the contract had been concluded after January 1st, 1992, it would have been governed by CISG, since at that date both the Netherlands and Switzerland were Contracting States (Art. 1(1)(a) CISG). On applying CISG to determine the place of payment of the price, the Court held that the buyer, in order to exclude the jurisdiction of Dutch court, could not invoke the provision of Art. 57(1)(b), since the contract did not provide for payment against the handing over of the goods. Therefore, under Art. 57(1)(a) CISG the price should have been paid at the seller's place of business. Since this happened to be in the district of the Court, it would have jurisdiction. If the contract had been concluded before 1992, it would not have been governed by CISG, but the application of the law designated by Dutch private international law rules would lead to the same solution of the jurisdiction matter. |