Competencia judicial internacional y compraventa internacional de marcaderíasun estudio de metajurisprudencia análitica

Resumo

ABSTRACT: I. Purpose of this doctoral dissertation. This doctoral thesis aims to decode the real meaning of Article 7.1 b) first point of the Brussels I bis Regulation 1215/2012. This legal provision may seem quite be enigmatic, critical and dark. It shows different profiles of great theoretical and practical depth. It is necessary to make concrete if Article 7.1 b) of the Brussels I bis Regulation should be interpreted as a direct substantive rule that leads to the specific competent court (= a material legal rule) or, on the contrary, it operates as conflict rule which takes concepts and elements from a particular state Law. In this vies, it should be clarified the role of the Law governing the contract. The validity of the sale as a contract in accordance with the Law that governs it, should be also be considered. The European Court of Justice has clarified that this legal provsion is submitted to an European interpretation, that is to say, it uses only European legal terms and not national concepts. Another challenge that this legal rule raises is to detect which is the last substantial purpose of it. Some legal scholars sustain that the rule's purpose is to favor the buyer or seller, but other legal experts have claimed that, on the contrary, that is a neutral legal provision that does not favour any of the parties. Moreover, it is clear that Article 7.1.b) stimulates international and this is the key element that helps the interpreter to penetrate into the essence of this legal provision and to discover how it should be construed. II. Methodology. As a research in private international law, this doctoral thesis amis to analyze the legal reality thorugh the consideration of three methodological fundamental elements: law, case-law, and academic literature. This doctoral thesis has combined these three methodological elements:: Law, as the fundamental base of the work (= i.e.: European private international Law); case-law (= both European jurisprudence, and national jurisprudence on the Brussls I-bis Regulation) and academic literature (= referred both to European Law and to Spanish Law when needed). These three axes have been used to develop the conclusions. IV. The result: The principal results of this research may can be concentrated in the following points: a) This ground of jurisdiction, place of delivery of goods, has been selected in order to operate as a simple rule both for the parties and for the state courts. b) This ground of jursisdiction should be construed without any reference to national Laws. Thus, the conflict rule does not operate in this sector. The place where the goods must be delivered has to interpreted as an autonomous concept. c) This ground of international jurisdicion is, from an economic point of view, totally efficient. It fits with the proximity principle. The court with international jurisdiction according to Art. 7.1.b) Brussels I bis Regulation is always predictable for the parties. The main element of this groud of jurisdiction is "the goods", "the litigious goods". This also aims to the sound administration of justice. Everything in this ground of jurisdicion concerns the goods. The parties know where the goods are or should be as well as the court should know that. d) The elgal scenario has totaly changed. National Laws remain relegated to the background. European private international law is the present and the future in international litigation. Legal experts of the 21st Century should focus on European private international law: European concepts, European methods of interpretation, European aims of the law.