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II. RESURGENCE OF THE ANTI-SUIT INJUNCTION: THE BRUSSELS I REGULATION AS A SOURCE OF CIVIL OBLIGATIONS?

Published online by Cambridge University Press:  09 May 2008

Andrew Dickinson
Andrew Dickinson
Affiliation:
Solicitor-Advocate. Visiting Fellow in Private International Law, British Institute of International and Comparative Law; and Consultant, Clifford Chance LLP.
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Abstract

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Type
Current Developments: Private International Law
Information
International & Comparative Law Quarterly , Volume 57 , Issue 2 , April 2008 , pp. 465 - 473
Copyright
Copyright © 2008 British Institute of International and Comparative Law

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References

1 [2007] EWCA Civ 723; [2007] 2 CLC 104; also noted A Briggs [2007] LMCLQ 433.

2 Turner v Grovit [2001] UKHL 65; [2002] 1 WLR 107, para 24 (Lord Hobhouse).

3 Opinion and Order (29 June 2007) 7, available at <http://www.reinsurancefocus.com/uploads/GuyCarpenterJulian.pdf>(last visited 28 March 2008).

4 Samengo-Turner (n 1) para 21 (Tuckey LJ).

5 ie Arts 18–21 (Jurisdiction over individual contracts of employment).

6 Samengo-Turner (n 1) para 23.

7 ibid paras 25, 29 and 31.

8 ibid para 33.

9 ibid.

10 ibid para 34.

11 Compare the reasoning of District Judge Cote (text to n 3).

12 ibid para 35.

13 ibid.

14 ibid para 37.

15 ibid para 38.

16 ibid.

17 ibid para 40.

18 ibid para 43.

19 This note does not address the aspects of the Court of Appeal's reasoning concerning (a) whether the terms and conditions of the award scheme constituted a ‘contract of employment’; and (b) whether GC and MMC should be regarded as ‘employers’. The correctness of the decision on these points is assumed, but no view is expressed.

20 Case C–281/02 [2005] ECR I-1383; [2005] QB 801.

21 ibid para 37.

22 ibid para 35.

23 Opinion 1/03 [2006] ECR I-1145, para 153 (‘[T]he application of a rule of jurisdiction laid down by the [Lugano Convention] may result in the choice of a court with jurisdiction other than that chosen pursuant to [the Brussels I Regulation]. Thus, where the new Lugano Convention contains articles identical to Articles 22 and 23 of [the Brussels I Regulation] and leads on that basis to selection as the appropriate forum of a court of a non-member country which is a party to that Convention, where the defendant is domiciled in a Member State, in the absence of the Convention, the latter State would be the appropriate forum, whereas under the Convention it is the non-member country.’ (Emphasis added)).

24 Lord Mance, ‘Is Europe Aiming to Civilise the Common Law?’ [2007] EBLR 77, 89; C Knight, ‘Owusu and Turner: The Shark in the Water?’ (2007) 66 CLJ 289, 299.

25 eg in applying its own rules under Art 4 or an international convention under Art 71.

26 In the writer's view, the context in which these comments were made suggests that the ECJ was concerned only with the relationship between the Brussels I Regulation and the Lugano Convention, and did not intend to advance any wider theory as to the Regulation's effect. It must be also be recalled that the ECJ was very careful in Owusu (paras 47–51) to avoid expressing a view on the very questions which it is now claimed to have answered in two sentences in an Opinion running to 173 paragraphs. That said, given the recent expansionist approach taken by the ECJ in the Lugano Convention Opinion and in other cases, it would not come as the greatest surprise if the Court were subsequently to claim a wider significance for the passage, aggrandizing the claim of EC law to apply even to situations with a very significant connection to a non-Member State.

27 Owusu (n 20) paras 39–43.

28 Case C–116/02 [2003] ECR I-14693; [2005] QB 1, para 72.

29 Case C–159/02 [2004] ECR I-3565; [2005] 1 AC 101, para 24.

30 See, in particular, Case C–253/00 Antonio Muñoz y Cia SA v Frumar Ltd [2002] ECR I-7289, paras 27–31; D Wyatt et al, Wyatt & Dashwood's European Union Law (5th edn, Sweet and Maxwell, London, 2006) para 5.004.

31 Wyatt, ibid para 5-023(a). For a recent example, concerning the First Insurance Directive, see the decision of the Court of Appeal in Poole v HM Treasury [2007] EWCA Civ 1021.

32 See the view expressed (obiter) by Potter J in The Eral Eil Actions [1995] 1 Lloyd's Rep 64, 76.

33 See Brussels I Regulation, Recitals (5) and (19).

34 ibid Recital (6).

35 See the Commission's Explanatory Memorandum accompanying its Proposal for a Regulation (COM (1999) 348 final, 4–5, points 2.1 and 2.2.

36 ibid 6, point 4.1. See also the Preamble to the 1968 Brussels Convention.

37 Case C–125/92 Mulox v Geels [1993] ECR I-4075, para 11. See also Case C–241/83 Rösler v Rotwinkel [1985] ECR 99, para 23; Case C–26/91 Soc Jakob Handte & Co GmbH v Traitements Mécano-chimiques des Surfaces SA [1992] ECR I-3967; Case C–365/93 Marinari v Lloyd's Bank plc [1995] ECR I-2719, para 19; Case C–383/95 Rutten v Cross Medical [1997] ECR I-57, para 13; Turner v Grovit (n 2) para 72; Owusu (n 20) para 39.

38 See Preamble to the Convention.

39 eg, Case 38/81 Effer v Kantner [1982] ECR 825, para 6; Case 288/82 Duijnstee v Goderbauer [1983] ECR 3663, paras 11–12. See also J Pontier and E Burg, EU Principles on Jurisdiction and Recognition and Enforcement of Judgments in Civil and Commercial Matters (CUP, Cambridge, 2004) ch 2.

40 See, albeit in a different context, Case C–222/02 Peter Paul v Germany [2004] ECR I-9425, para 40.

41 Emphasis added in all cases.

42 ‘Persons who are not nationals of the Member State in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that State.’

43 ‘shall’ (Art 2.1), ‘may … only’ (Art 20.1).

44 As the ECJ suggests Case C–234/04 Kapferer v Schlank & Schlank GmbH [2006] ECR I-2585, para 22, without further analysis.

45 Case C–224/01 Köbler v Austria [2003] ECR I-10239; Case C–173/03 Traghetti del Mediterraneo v Italy [2006] ECR I-5177.

46 See also Section 8 (Examination as to Jurisdiction and Admissibility).

47 Muñoz (n 30) para 41.

48 (n 28).

49 (n 29).

50 See, eg, A Dickinson, ‘A Charter for Tactical Litigation in Europe’ [2004] LMCLQ 273.

51 Gasser (n 28) para 72; Turner (n 29) para 24.

52 Dicey, Morris & Collins, The Conflict of Laws (14th edn, Sweet and Maxwell, London, 2006) para 12-081.

53 Turner v Grovit (n 2).

54 On this question, see Ingmar GB Ltd v Eaton Leonard Technologies Inc [2002] ECR I-9305, especially the opinion of Advocate General Léger, paras 20–56.

55 eg, Case C–343/96 Dilexport Srl v Amministrazione delle Finanze dello Stato [1999] ECR 1-579, para 25.