4.

The reference in the ‘Rapport Jenard’ to the fact that the wording employed in Article 5 (3) of the Convention coincides with that adopted by certain national legal systems confers particular relevance upon an enquiry as to what meaning is attributed to the relevant wording within the legal systems of the said States. Nevertheless I should like to point out that, in my view, the fact that the wording of the Convention coincides with that of a specific provision in one of the Contracting States is insufficient to require the provisions of the Convention to be interpreted in the light of the tendencies in interpretation prevailing in that State. Interpretation is closely linked to the context of a measure and to the system within which it operates; thus it seems clear that once an expression taken from one or more national legal systems has been inserted in a multilateral international treaty it must be understood in accordance with the scope and objectives of such treaty and not those of any national system of law from which it may have originated. This is of even greater significance in the present case in which the expression under consideration is amongst those employed within a State, either in the substantive law on non-contractual liability, in private international law or in the law of civil procedure; furthermore within the context of procedural law those words can relate both to the delimitation of territorial jurisdiction and the determination of the jurisdiction of the courts with regard to aliens. Even if we restrict ourselves to this latter application of the words it should not be forgotten that national courts display a certain tendency to understand jurisdictional criteria in such a way that they can declare themselves to have jurisdiction to settle the dispute submitted to them. This impulse in the direction of the national courts is capable of causing positive conflicts of jurisdiction on occasions and clearly cannot have any function in the interpretation of a convention, such as the Convention of Brussels, precisely because this Convention lays down uniform rules for all the Contracting States and has as its aim the prevention of conflicts of jurisdiction. When this point has been made however, it must be recognized that neither the interpretative tendencies which have developed in the French system nor those which have emerged in the Federal Republic of Germany provide an unambiguous solution to the problem. In France, it was laid down in the last paragraph of Article 59 of the Code of Civil Procedure (Code de Procédure Civile) in force until 31 December 1975 that the courts for the place ‘où le fait dommageable s'est produit’ (‘where the harmful event occurred’) should have jurisdiction. Case-law was divided on the interpretation of this provision: in some cases the phrase was considered as a reference to the place in which the act occasioning the damage occurred and in others it was seen as referring to the place in which the damage occurred (cf. the judgments of the Cour de Cassation of 8 March 1937, Dalloz 1938, I, 76; of 6 December 1939, Dalloz 1940, I, 40; of 28 March 1968, Le Bulletin des Arrêts de la Cour de Cassation (Chambre Civile) 1968, II, No 100). In the new Article 46 of the Code of Civil Procedure which came into force on 1 January 1976 the legislature expressly provided plaintiffs with a choice of the court of the place where the act occurred or the court of the place where the damage occurred; this article thus distinguishes the place where the ‘harmful event’ occurred from the place where the damage occurred. The respondent in the national case has endeavoured to rely upon this distinction, maintaining that since Article 46 has added an express reference to damage this signifies that the concept of a ‘harmful event’ is restricted to the act causing the damage. This inference is indeed correct with regard to the new provision but, to clarify the intention of the authors of the Convention on the basis of French law, it would clearly be necessary to take account of the provision and of case-law at the time at which the Convention was drawn up. Courts and academic lawyers in the Federal Republic of Germany have also dealt with the plaintiff's option between the place where the act was committed (‘Tatort’) and the place where the consequences of the act appeared (‘Erfolgsort’), both with regard to domestic and international jurisdiction (concerning pollution of the environment, cf. judgment of the Oberlandesgericht Saarbrücken of 22 October 1957 in the Neue Juristische Wochenschrift, 1958, p. 752, and the judgment of the Oberlandesgericht Hamm of 3 July 1958op. cit. 1958, p. 1831). It should be further noted that where Article 32 of the German Code of Civil Procedure (Zivilprozeßordnung) lays down the criteria for jurisdiction, which in accordance with the case-law of the Bundesgerichtshof (the Federal Court of Justice) are the same in domestic proceedings and with regard to foreigners, reference is made to the place where the act (‘die unerlaubte Handlung’) was committed. However, the wording does not coincide with that adopted in the Convention inasmuch as Article 5 (3) of the German version provides that a person may be sued ‘vor dem Gericht des Ortes, an dem das schädigende Ereignis eingetreten ist’. Only within the framework of French law prior to 1976, then, is the wording of the phrase in Article 5 (3) exactly the same as that adopted for the criterion of jurisdiction in the context of domestic law and it is difficult to draw definite conclusions from this, even if it were desired to disregard the considerations I have put forward on the propriety of accepting as one's premises the interpretative practice prevailing in a single State. Treated in isolation the wording actually lends itself to at least three interpretations: the place where the act was committed, the place where the damage occurred and a choice between one or other place, at the option of the plaintiff. For the sake of completeness, some reference should be added to the legal systems of certain other Contracting States and, in addition, to those of two Member States which are not yet parties to the Convention: those legal system confirm that there is no justification for making a choice on the basis of tendencies which have established themselves at the level of national law.