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THE PROVINCES OF CONTRACT AND TORT - BORDER DISPUTES IN THE CONFLICT OF LAWS

Lloyd's Maritime and Commercial Law Quarterly

THE PROVINCES OF CONTRACT AND TORT - BORDER DISPUTES IN THE CONFLICT OF LAWS

Wikingerhof v Booking.com

Andrew Dickinson*

As the United Kingdom’s membership of the European Union disappears in time’s rear-view mirror, it might be tempting to cast aside a judgment of the European Court of Justice delivered a little more than a month before the end of the implementation period, concerning an instrument (the recast Brussels I Regulation1) that forms no part of the body of retained EU law to be applied by the courts of this nation going forwards.2 The Court’s judgment in Wikingerhof GmbH & Co KG v Booking.com BV,3 and the accompanying Opinion of Advocate General Saugmandsgaard Øe,4 must not, however, be dismissed in this fashion. In staking out the previously hazy borderline between the rules of special jurisdiction in Art.7(1) (contract) and Art.7(2) (tort) of the Regulation, Wikingerhof elucidates the distinction between contractual and extra-contractual matters within the European private international framework to which the UK retains close ties through its unilateral decision to apply the Rome I and Rome II Regulations in matters of choice of law5 and its declared (but as yet unrealised) ambition to rejoin the 2007 Lugano Convention.6
The Booking.com website describes Hotel Wikingerhof as a Frisian-style hotel in the town of Kropp in Schleswig-Holstein, Germany. The website, based in the Netherlands, and the hotel management company entered into a contractual relationship in 2009 on the website’s standard terms. In recent years, the relationship had soured as a result of changes made to those terms. The hotel company commenced proceedings in the Landgericht Kiel seeking an injunction to restrain the website from undertaking certain practices that the claimant contended were an abuse of the website’s dominant position in the market

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