Class 4: Predictability

Question 1

What were the goals of the 1968 Brussels Convention?

Answer 1

• 3 step process could only be harmonized by harmonizing the jurisdictional rules = leads to the most problems for recognition and enforcement.
• As a result of the harmonized jurisdictional arrangements → CJEU applied them in a harmonized fashion to give if predictability.

Question 2

What was the case Gasser?

Answer 2

• Case about breach of contract and Italian Torpedo: 3 questions were relevant:

1. Is it possible for the judge of a state to ask for an explanation even when they have to stall? Yes, this is possible!
2. Choice of forum is no exception to the general rule → article 21 must be understood as stipulating that the judge who was approached last must stay its proceedings until the first judge has decided about his competence.
3. Is it possible to deviate from art. 21 if the first judge is situated in a contracting state where judicial proceedings take an extraordinary period of time?
   
   • Court: no, art. 21 does not mention this and the convention is based on trust of the contracting states and their judicial systems & institutions.

Question 3

What is the classic case of the Italian torpedo?

Answer 3

• Classic case of the Italian Torpedo, abusing the lis pendens rule of art. 21 (now art. 29) → when a court is seized, the others have to get their hands off the case, at least until the court that first has been seized has an opportunity to decide on its jurisdiction or absence of jurisdiction.
• Also called: ‘race to the court’: can be a dream vehicle if you want to delay the proceedings in the hope of frustrating the other party.

Question 4

What are important things to remember about race to the court?

Answer 4

1. The last thing you want to do is declare that if your imposing party does not answer by 5pm on Friday, you will take them to court because the other party will go to a different court first. In international negotiation = threatening a specific deadline of going to court because if invites proactive action by the other party.
   
   • Eg. DNI’s = declaration of non-infringement or negative declaration where you ask the court to confirm that you do not have liability or tort in a contract. Negative injunction.
2. Brussels Ia Regulation has a new mechanism which tries to make the torpedo impossible in a specific case of choice of court.

Question 5

What is the Turner case?

Answer 5

• Concerning mr. Turner’s employment contract with Harada. Turner = UK citizen, a solicitor. Claimed unfair dismissal because he was asked to perform illegal conduct.
• Question: Does the Convention preclude the granting of an injunction by which a court of a Contracting State prohibits a party to proceedings pending before it from commencing or continuing legal proceedings before a court in another Contracting State even where that party is acting in bad faith in order to frustrate the existing proceedings?
  
  • Yes!
• There’s this justification that you cannot have an anti-suit injunction, again based on mutual trust (as was in Gasser).
  
  • Anti-suit injunction: very important because it prohibits the other party from a particular procedural course of action = prohibits the other party from taking the case elsewhere, whether it be an arbitration or another court.
  • Court stated: we cannot have that, a MS second guessing the application of the regulation by their fellow member state court! An English judge must trust all other European judges that they will properly apply the regulation.
• Court of Justice: anyway that you look at it (procedural, substantive,…), the result = frustrate the potential for another court to implement the regulation properly.
  
  • Effet utile

Question 6

What is an anti-suit injunction?

Answer 6

• Anti-suit injunction = very strong procedural mechanism because if you violate it → will be held in contempt of court, you can go to jail!
• In the area of conflict of laws, anti-suit injunction is an order issued by a court or arbitral tribunal[1] that prevents an opposing party from commencing or continuing a proceeding in another jurisdiction or forum. If the opposing party contravenes such an order issued by a court, a contempt of court order may be issued by the domestic court against that party.

Question 7

What is mutual trust and what are the implications? (2)

Answer 7

Only applies between MS, not outside. 2 implications:

1. Judgements Convention of the Hague Justice Convention (has same idea as Brussels Ia of harmonizing jurisdictional rules to increase recognition and enforcement) does not have the same strong feeling of mutual trust, because it does not have the CJEU to discipline.
2. Recent development in Greek Supreme Court: they accept the recognition of English and Welsch cost holders against Greek assets of the defendants = based on mutual trust on the basis of Brussels Ia.

Now, after Brexit and because UK will not be part of Lugano, it will be much easier for other states to refuse to recognize English judgements → English courts could lose some of their attraction in international commercial litigations!

Question 8

What does the regulation do and what is it not concerned with?

Answer 8

• Regulation assigns jurisdiction to a particular MS (or a variety of MS where you can choose, see later).
  
  • Not generally concerned with national rules on civil procedures.
• But: a few places where the regulation does assign a specific court of a MS, but it does not identify a specific court within that MS because that is up to the national civil procedural rules of the MS.
  
  • Sometimes: the regulation does point out a specific court! You really need to check that!

Question 9

What is the basic principle of art. 4?

Answer 9

• Actor sequitur forum rei = you pursue the defendant in their place of domicile: old medieval saying = you follow the person to their domicile to get your debt sorted out.
  
  • The regulation is mostly concerned with the position of the defendant and very rarely with the position of the claimant.
• “Subject to this regulation persons (=natural persons & corporations), domiciled in a MS.
  
  • Nationality is irrelevant in the context of the regulation = core rule (there are some exceptions).
  • Core rule so exceptions must be interpreted narrowly.

Question 10

What is the latin for art. 4?

Answer 10

• Actor sequitur forum rei = you pursue the defendant in their place of domicile: old medieval saying = you follow the person to their domicile to get your debt sorted out

Question 11

What is a condition that has to be fulfilled in order to apply the Brussels Ia Regulation?

Answer 11

• International element: condition has to be fulfilled in order to apply the Brussels Ia Regulation
• See case Owusu:

Question 12

Forum non conveniens

Answer 12

• a means by which a court relinquishes jurisdiction, even though in theory, it could actually exercise such jurisdiction.
• Forum non conveniens: governmental interest analysis = US approach to jurisdiction and private international law.

Question 13

Case Owusu

Answer 13

• Mr. Owusu brought an action that happened in Jamaica against Mr. Jackson = domiciled in the UK and also brought with it the action against Jamaican compagnies and people who live in Jamaica.
  
  • Principle of forum non conveniens said Mr. Jackson = English court was not the most suitable to bring the action against.
• Court: it cannot be applied because the defendant should reasonably foresee before which courts he may be suited , and this is not possible with the forum non conveniens.
  
  • Only European element in the factual matrix is the presence of a claimant who happens to be domiciled in England. But position of claimant is never relevant in the Regulation. All the rest of the factual matrix was outside of the EU because all the defendants have Jamaican nationality and all facts took place there, as well as the applicable law is Jamaican law.
• Question: Is the mere presence of one MS enough for there to be an international element that would trigger the regulation?
  
  • So the court says that it is enough that one Member State might have jurisdiction on the base of article 4 for the Regulation to apply. That is enough of an international element.

Question 14

What is the Grotius case and notion?

Answer 14

• Grotius notion: hen it comes to jurisdiction of a state, because of principles of comity (comitas gentium = Comity is founded upon the concept of sovereign equality among states and is expected to be reciprocal.).
• Suggests that a court should not, if the links of the case to that court are very fragile, almost non-existent, then a court should not obsessively exercise jurisdiction if you like wish to exercise jurisdiction if there is a strong interest of a competing court in another state to hear the case.
  
  • If the factual matrix points to another state = balance, gravity of the case.

Question 15

What is conversely of the Grotius notion?

Answer 15

• Conversely: court should have little hesitation in entertaining an international case if the alternative states that might potentially want to hear the case because of the parties, or because of some factual element that is linked to them.
• If those alternative states have no real interest in hearing the case, there is basically, that transpired in this theory of this forum non conveniens: then the court may hear and judge the case.

Question 16

What could the court have explained better in case Owusu?

Answer 16

• Case Owusu: the court could have done a better job at explaining to the CJEU that forum non conveniens is not something that is a kind of discretionary rule that leaves a lot of freedom for the court to be seized.

Question 17

What is the case Spiliada?

Answer 17

• House of Lords judgement: lies down the conditions of relevant authority, where an English court may refuse jurisdiction, even though it could actually exercise jurisdiction.
• Factors to consider:
  • Connection to the case, the forum?
  • How difficult will it be in practice to hear the case?
• In theory, we could exercise but like in the case of Owusu = way more practical to have it in Jamaica.
• Also: ius novit curia = the judge knows the law, this included foreign law as well → does not exist in common law where you have experts by each of the party.

*

Question 18

What are some important general principles we can derive from Gasser and Owusu?

Answer 18

• Harmonized set of jurisdictional rules → enables quick recognition and enforcement
• Owusu: predictability, even before there is even a hint of litigation.
  
  • Any mechanism in national procedural rules which upsets predictability cannot fly in the interpretation by the CJEU of the Brussels IA regulation.
• Gasser where the Court rejects anti-suit.
• Owusu where the Court rejects forum non conveniens: Brussels Ia has own forum non conveniens in art. 34-35

Question 19

What is case Lidner? The facts of the case

Answer 19

• Lidner was a German consumer living in the Tsjech Republic, he was granted a mortgage by a Tsjech bank. Contract contained a jurisdiction clause in favor of the local court of the bank (Prague), even though he was domiciled much further.
• Proceedings were initiated by the bank for payment, but he moved and so there was a guardian assigned as he was not found.

Question 20

What is case Lidner? The questions to the court?

Answer 20

1. Applicability of the regulation: simply because someone is a national of another MS
   
   • Court answered: the court must raise questions relating to determining the international jurisdiction of the courts = It is actually brought before the court of a member state against a national of another member states but whose domicile is unknown.
2. Is it possible that the regulation rules out the provision making it possible to bring proceedings against persons whose domicile is unknown?

Question 21

How did the court answer in Lidner?

Answer 21

1. Court must determine whether the defendant is domiciled in the member state of the court by applying its own law
2. Court concludes that the the defendant in the main proceeding is not domiciled in the member state of the court. The court must examine his domicile in another member state
3. Still unable to identify the place of domicile of the consumer → regulation is applicable where the domicile of the consumer is currently unknown but was his last known domicile.
   * Court states: nationality is not even a jurisdictional element in the application of Brussels Ia.

Question 22

What is the conclusion for the case Lidner?

Answer 22

• So in this case: nationality is enough to trigger regulation, even if it is not an actual jurisdictional rule under the regulation in Brussels Ia. Also here, the regulation doesn’t just appoint a court within that member states but appoints a specific court.

Question 23

Case Grey v. Hurley facts of the case

Answer 23

• Case High Court 2019, a bit like Owusu.
• Issue was matrimonial property and question: in the case of an unknown domicile, with the potential domicile being a non-EU domicile (New Zealand), whether that would also trigger the Lidner scenario or is this an international case?
• High Court was unsure if this could be extended to an ex-EU court but the case was settled before the Court of Justice could decide on it.

Question 24

Reasoning of Grey and Hurley

Answer 24

• Reasoning on using anti-suit cases where the competing court is not a court of a fellow EU member state (Turner). Interesting to see if the Court would safeguard the fautil of Brussels Ia against courts outside of the EU, using a proceduring means which in Turner is declared inherently incompatible with the DNA of the regulation.

Question 25

could we use anti-suit to protect against exercise of jurisdiction by a court outside of the EU?

Answer 25

• Has not been answered as the case has been dropped, but interesting because the reasoning was that it denies a fellow court in a fellow member state the jurisdiction, but that is not an issue when it comes to a court outside of the EU.

Question 26

What is the scope of application of Brussels Ia?

Answer 26

• “This regulation shall apply in civil and commercial matters, whatever the nature of the court or tribunal” = indication that it is not a matter of which court = no impact on the qualification (can also be an administrative court).
• “It shall not not extend, in particular, to revenue, customs or administrative matters, or to the liability of the state for acts and omissions in the exercise of state authority.” And then between brackets ‘acta iure imperii’ (=overheidshandelingen!) = been added in Brussels Ia (was already part of the CJEU case law).

Question 27

Question: what is civil and commercial?

Answer 27

• Lots of litigation surrounding this question! = Knock out point!
• Not a lot of academic interest by people bringing the cases but practical interest! If the regulation does not apply = judgements will not travel as far as recognition and enforcement is concerned under Title 3 of the regulation.
• If the regulation does not apply → neither do the jursidictional rules = could be interesting if you want it to go to another court!

Question 28

Case FlyLal facts of the case?

Answer 28

• 2 companies: one of them under Lithuanian law and the other under Latvian law. Request for recognition and enforcement in Latvia of a judgement of a Lithuanian court ordering provisional measures.
• FlyLAL: seek compensation for damage from the abuse of dominant position of Air Baltic and anti-competitive behaviour = does this fall within the concept of civil and commercial matters and thus the regulation?

Question 29

What did the court say in Flylal?

Answer 29

• Court: yes, actions seeking legal redress for damage = civil and commercial matters.
• But, exercise of public powers by one of the parties excludes it from civil and commercial! But airport facilities in return for a fee = economic activity → within the scope of commercial and civil matters.
• So it is within the scope, answer: is that it has to be interpreted as meaning that an action such as that in the main proceedings, seeking compensation for damage, resulting from alleged infringements, does not constitute proceedings having as their object the validity of the decisions of the organs of companies within the meaning of that provision.

Question 30

What is the Eurocontrol formula?

Answer 30

• Autonomous interpretation of civil and commercial matters. This applies to all the concepts used in the regulation!!
  
  • Many MS had difficulties in allowing you to enforce a claim against a public authority because of immunity from execution.