“The Parent Company will provide a Parent Guarantee for 4 years from the date of the Lease”
“Third parties are included in the scope of application of Section 29a ZPO if they are obliged under the tenancy agreement and not under an independent contract relating to the tenancy”
“I would accept … that the Judge failed to take any account of the important connecting feature that D1 and D2 are domiciled in England and have been served here as of right. The domicile of the parties was not one of the Judge’s headings and did not feature in his conclusory paragraphs. It is, however, an important factor. The reason it is an important connecting factor in relation to jurisdiction is because presence here is the basis for establishing the court’s jurisdiction, and domicile here connotes a degree of permanence and allegiance to the country’s institutions, including its courts, which means that the party can reasonably expect, and be expected, to meet claims against it in such courts in the absence of sufficient countervailing factors.That is why within the EU domicile remains the foundational factor for allocating jurisdiction in civil and commercial matters, subject to derogations. The importance of presence or domicile is at the heart of the difference in the burden of proof between service in and service out cases. In the latter case the assertion of jurisdiction is prima facie ‘exorbitant’, whereas in the latter it is prima facie ‘as of right’. That is why, as Lord Goff emphasised in Spiliada at pp. 476F, 477E, the burden in a service in case is on the defendant to point to a distinctly and clearly more appropriate forum, because the advantage to a claimant of pursuing a defendant in his place of domicile will not lightly be disturbed.”
“40. German law adopts a prima facie subjective approach to the formation of contract. It requires an agreement of the parties which amounts to a ‘meeting of the minds’. As opposed to English law, where the test for the existence of a sufficient agreement is objective (what would a reasonable person have concluded that the parties had agreed with each other, based on the outward signs of their words and conduct?), the German test is subjective. It inquires what the parties actually intended and whether these intentions aligned. 41. However, the subjective approach under German law is strongly objectivized: the evidence of what the parties subjectively intended will usually be based mostly on what the parties said or did at the time of, before or after the making of the agreement. As a consequence, a German court assessing whether a (subjective) agreement has been reached will almost inevitably have to rely on the same ‘objective’ factors that would be considered by an English court (statements and conduct). The test under German law is indeed labeled the objektiver Empfängerhorizont, ie the understanding that a reasonable addressee of a statement (eg an offeree) must have had. This understanding is usually based not on the real, but on the hypothetical intentions of the parties. 42. The assessment of whether the parties have reached a contractual agreement under German law is therefore, in practice, very similar to the same exercise under English law. In theory, there is a major difference: the German court may also take evidence of subjective intentions of one of the parties that may have differed from what the other party might have reasonably understood (see above, para 32). These intentions, however, do not prevent the contract from coming into existence: the contract will then be made with the content that the other party could have reasonably understood the first party to have intended (test of the objektiver Empfängerhorizont). 43. Yet, in such a scenario, the subjective intentions of the first party may be relevant in order to assess whether the contract is voidable for mistake. This is the most important practical consequence of the subjective approach to German contract law. As a result, the doctrine of mistake in Germany is much broader than in England. It allows for the relevance of a unilateral mistake as to the terms or the subject-matter of the contract. Such mistakes make the contract voidable (sections 119 and 142(1) BGB).”
“The fact that litigation will be coordinated and conducted from one of the two rival fora, irrespective of the forum in which the litigation takes place, is a significant connecting factor with that forum”
“The reality is that OPPO are not concerned to save time or legal costs, they just want the … issues to be determined in the forum of their choice having commenced duplicative proceedings there after the commencement of the present claim. That is not a good reason for a case management stay”