“The governing law of the contracts signed between Ferrero and Baskan are determined on each of the contract [sic] signed, which is generally the governing law of the country the Ferrero Company signing the contract is located.”
“I am writing to confirm our discussion of FERRERO’s experience with Baskan as a supplier. Our company has been working with Baskan Gida since 1991, and on a large-scale basis after initial testing since 1993. Hazelnuts are FERRERO’s single most important source of raw materials, and Baskan has been for several years our largest single supplier of hazelnuts. We have a very close working relationship to coordinate the market strategy for this important commodity, maintaining communication on a daily basis during the harvest season. As the Deputy Purchasing Manager for FERRERO, I am responsible for coordinating this relationship and can report no significant difficulties since we began cooperating with Baskan. Since the centralization of FERRERO’s purchasing department in 1999, we have purchased over 30,000 tons of natural hazelnuts from Baskan annually. We expect these trends to continue. In terms of quality, we rely on Baskan’s ability to provide consistent shipments of the highest standard on a timely basis. In fact, out of 200,000 tons supplied since 1991, I am aware of only 4 or 5 truckloads amounting to a total of approximately 100 tons, that FERRERO did not accept under the standards presented by Baskan. These shipments were simply regraded and accepted as a less expensive category. We expect these demanding quality standards to continue on both sides of the relationship. Please let me know if I can provide any further information.”
“We believe that a notice in similar terms to the one sent to Ferrero Industrial may have been sent to Ferrero S.p.A on19 December 2001 and acknowledged shortly afterwards”
“Applicable law and court of jurisdiction. This contract shall be governed solely by German law. The court of jurisdiction for all disputes shall be Frankfurt am Main.”
“where each claim included in the claim form made against the defendant is a claim which the court has power to determine under the Judgments Regulation and (a) no proceedings between the parties concerning the same claim are pending in the courts of … any other Regulation State and (b) … the defendant is domiciled … in any Regulation State …”
“It must therefore be a matter of concern that a rule in relation to negligent mis-statement which emphasises where the mis-statement is received and acted upon, or where the economic loss is finally felt, is a rule which over-favours the plaintiff’s jurisdiction, contrary to the essential structure of the Convention as expressed in article 2, and contrary to the warnings expressed by the European Court … . … it seems to me that the place where the harmful event giving rise to the damage occurs in a case of negligent mis-statement is, by analogy with the tort of defamation, where the mis-statement originates. It is there that the negligence, even if not every element of the tort, is likely to take place; and for that and other reasons the place from which the mis-statement is put into circulation is as good a place in which to found jurisdiction as the place where the mis-statement is acted on, even if receipt and reliance are essential parts of the tort. For these purposes it seems to me that there is no difference between a written document and an oral or other instantaneous communication sufficient to distinguish between such cases. Although it may be argued that in the case of instantaneous communications and perhaps especially in the case of telephone conversations the mis-statement occurs as much where it is heard as where it is spoken, nevertheless it remains true as it seems to me that it is the representor’s negligent speech rather than the hearer’s receipt of it which best identifies the harmful event which sets the tort in motion. To prefer receipt and reliance as epitomising the harmful event giving rise to the damage in the case of negligent mis-statement is, I think, to ignore the fact that the plaintiff also has the option of suing in the courts of the place where the damage occurs – which is quite likely to be at the place of receipt and reliance. As for the place where the damage itself occurs, that may, of course, be elsewhere than the place of the event giving rise to the damage and, as I have already suggested, is quite likely to be where the mis-statement is heard and relied on, but in this case I do not think that it was in England. In my judgment … the damage occurred in Switzerland and Italy, where the goods were released without prior payment.”
“If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing; or (b) be in a form which accords with practices which the parties have established between themselves; or (c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.” (a) in writing or evidenced in writing; or (b) be in a form which accords with practices which the parties have established between themselves; or (c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.”
“1. Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. 2. Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.”
“1. Where related actions are pending in the courts of different Member States, any court other than the court first seised may stay its proceedings. 2. Where these actions are pending at first instance, any court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof. 3. For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.”
“I am of the view that there should be a broad commonsense approach to the question whether the actions in question are related, bearing in mind the objective of the article, applying the simple wide test set out in article 22 and refraining from an over-sophisticated analysis of the matter.”