- Council Regulation (EG) 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgements in Civil and Commercial Matters, OJ 2001 L12/1 as amended, (hereinafter the “Regulation”).
- Owusu v Jackson and Others C-281/02 [2005] ECR 1–1383.
- The Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (hereinafter the “Convention”). For the sake of convenience, unless otherwise stated, this article makes reference to the Regulation rather than the Convention. The Brussels Convention, Regulation and associated jurisprudence together comprise the “Brussels regime”.
- See eg Turner v Grovit (G-159/02) [2004] EGR 1–3565 in which the EGJ confirmed that the English court could not grant an anti-suit injunction to restrain proceedings in another Member State, and that such a power was incompatible with the Brussels regime.
- 5 These exceptions are discussed below.
- The test under English law is set out in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460.
- Report on the Convention on the Association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice [1979] OJ G59/71 (the “Schlosser Report”), 78.
- The Schlosser Report states that the United Kingdom did not press for a formal adjustment to the Convention in relation to the doctrine of forum non conveniens (Schlosser Report, 78).
- [1992] Ch 72.
- Per Dillon LJ, at 97: “For the English court to refuse jurisdiction, in a case against a person domiciled in England, on the ground that the court of some non-contracting state is the more appropriate court to decide the matters in issue does not in any way impair the object of the Convention of establishing an expeditious, harmonious, and, I would add, certain, procedure for securing the enforcement of judgments, since ex hypothesi if the English court refuses juris-diction there will be no judgment of the English court to be enforced in the other contracting states. Equally and for the same reason such a refusal of jurisdiction would not impair the object of the Convention that there should, subject to the very large exception of Article 4, be a uniform international jurisdiction for obtaining the judgments which are to be so enforced.”
- Supra n 2.
- Supra n 2, 22. The case concerned the Convention rather than the Regulation, but the distinction is immaterial for present purposes as the text of Article 2 is identical in both.
- Supra n 2, 37.
- Supra n 2, 46.
- Supra n 2, 47–52.
- Arts 22, 23, 27 and 28 of the Regulation. These Articles are discussed in more detail below.
- Each of these Articles is expressed such that the displacement or foundation of jurisdiction operates as between Member States.
- See eg Dicey, Morris and Collins, The Conflict of Laws (Sweet & Maxwell, 14th edn, 2006), para 12–021; A Briggs and P Rees, Civil Jurisdictions and Judgments (Informa, 5th edn, 2009), esp at para 2.256; J Harris, “Stays of Proceedings and the Brussels Convention” (2005) 54 Interna-tional and Comparative Law Quarterly 933; E Peel, “Forum Non Conveniens and European Ideals” [2005] Lloyd's Maritime and Commercial Law Quarterly 363; A Briggs “Forum Non Conveniens and Ideal Europeans” [2005] Lloyd's Maritime and Commercial Law Quarterly 378.
- The Irish Supreme Court ordered a reference to the ECJ in a matter involving existence of a lis alibi pendens in a non-Member State but the matter was settled before the decision of the ECJ: Goshawk Dedicated Ltd v Life Receivables Ireland Ltd [2009] ILPR 26.
- Recital 1 to the Regulation states: “The Community has set itself the objective of maintaining and developing an area of freedom, security and justice, in which the free movement of persons is ensured. In order to establish progressively such an area, the Community should adopt, amongst other things, the measures relating to judicial cooperation in civil matters which are necessary for the sound operation of the internal market” (emphasis added). Similarly Recital 2 states: “Certain differences between national rules governing jurisdiction and recognition of judgments hamper the sound operation of the internal markets. Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters and to simplify the formalities with a view to rapid and simple recognition and enforcement of judgments from Member States bound by this Regulation are essential.”
- This interpretation of Owusu was adopted by Barling J in Catalyst Investment Group Ltd v Lewin-sohn [2010] 2 WLR 839.
- Miss Lucy Theis QC (sitting as a Deputy High Court Judge) in JKN v JCN [2010] EWHC 843 (Fam) expressly considered the issue of irreconcilable judgments in her decision, noting in her conclusions (at 149) that: “It is neither necessary nor desirable to extend the Owusu principle in cases where there are parallel proceedings in a non-Member State. I have reached this conclusion for the following principal reasons: (a) The risk of irreconcilable judgments which undermine two important objectives of the Brussels scheme namely: avoiding irreconcilable judgments between Member States and ensuring recognition of judgments between Member States, (b) It would lead to an undesirable lacuna, as there will be no mechanism in place for resolving this situation with the consequence of both proceedings continuing with the consequent increased uncertainty and cost.” See also Jacob LJ (at 134) in Lucasfilm v Ainsworth [2010] 3 WLR 333.
- Supra, introductory footnote.
- Art 77(1) of the Law of Ukraine on International Private Law.
- Such matter would fall within the scope and control of Art 22 of the Regulation if the parties involved were Member States.
- Art 23(1) of the Regulation provides that, in a case where certain criteria are met: “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.”
- Dicey Morris and Collins, supra n 18, Rule 32(2) states that: “where a contract provides that all disputes between the parties are to be referred to the exclusive jurisdiction of a foreign tribunal, the English court will stay proceedings instituted in England in breach of such agreement…unless the claimant proves that it is just and proper to allow them to continue”.
- See supra n 26: Art 23 provides only for the jurisdiction of a Member State court and makes no provision in respect of those outside of the Regulation's signatories.
- [1893] AG 602.
- 30 Ibid per Lord Herschell at 622.
- See also the decision of the Court of Appeal in Lucasfilm, supra n 22.
- G Droz, Competence judiciaire et effets des jugements dans le Marche commun (Dalloz, 1972).
- Supra n 21.
- Supra n 22.
- Corf Maritime GmbH v Handelsveem BV (G-387/98) [2000] EGR 1–9337.
- [2005] 2 Lloyd's Rep. 555.
- [2009] Bus LR 1006.
- [2011] ILPR 8.
- [2009] Lloyd's Rep IR 227.
- [2000] 1 WLR 173.
- [2009] EWHG 1839 (Gh).
- [2009] EWHG 894 (Gomm).
- Supra n 21.
- Supra n 22. The distinction was adverted to in the Supreme Court. Lord Walker and Lord Collins declined to express a view as to whether Owusu could require an English court to adjudicate upon a non-justiciable matter.
Journal of Private International Law
Volume 8, 2012 - Issue 2