LIS ALIBI PENDENS AND RELATED ACTIONS IN CIVIL AND … · in Intellectual Property Matters 1. The Problems of s.c. Torpedo Actions 2. The Problems Concerning Rules on Related Actions:

Yearbook of Private International Law, Volume 11 (2009), pp. 511-564

© sellier. european law publishers & Swiss Institute of Comparative Law Printed in Germany

LIS ALIBI PENDENS AND RELATED ACTIONS IN CIVIL AND COMMERCIAL MATTERS

WITHIN THE EUROPEAN JUDICIAL AREA

Fabrizio MARONGIU BUONAIUTI∗

I. General Features of lis alibi pendens and Related Actions as Instruments of

Coordination among State Jurisdictions II. The EC Rules on lis pendens and Related Actions Contained in Regulation No.

44/2001 (‘Brussels I’) A. Lis pendens in the Brussels I Regulation – General Framework

1. The Scope of Application ratione loci 2. The Irrelevance of the Domicile of the Defendants

B. The Principle of Reciprocal Faith among the Judicial Systems of EU Member States

1. The Exclusion of a Review of the Jurisdiction of the Judge First Seized

2. The Exceptions in Cases of Exclusive Jurisdiction, Not including Choice of Court Agreements

3. The Irrelevance of the Excessive Average Length of Court Proceedings in the Member State Concerned

4. The Exclusion of the Power to Issue Restraining Orders, Like Anti- Suit Injunctions C. The Rules Concerning Related Actions under Article 28 of the Brussels I Regulation

1. The Definition of Related Actions 2. The Procedural Modifications Introduced by the Regulation

III. In Particular, the Requirements for the Application of the Rules on lis pendens: the Identity of the Cause of Action

A. The Relationship between Actions for Performance and Actions for a Negative Declaration 1. The Risk of forum shopping Inherent in the Solution Adopted by the ECJ 2. The Considerations of Procedural Equality among the Parties 3. The Solutions to Prevent Abuse: A Discretionary Evaluation of the Circumstances of the Case

∗ Researcher in International Law, University of Rome I ‘La Sapienza’, Faculty of

Law; LL.M. (Cantab.). This article discusses some of the topics more extensively treated by the author in his work Litispendenza e connessione internazionale. Strumenti di coordina-mento tra giurisdizioni statali in materia civile, Naples, Jovene Editore, 2008 (Pubblicazioni del Dipartimento di Scienze Giuridiche, Università degli Studi di Roma ‘La Sapienza’, No. 26), pp. xiv-605.

Fabrizio Marongiu Buonaiuti

Yearbook of Private International Law, Volume 11 (2009)

512

4. An alternative Solution: A Control on the Admissibility of Actions for a Negative Declaration

B. The Irrelevance of the Defendants’ Submissions for Determining the Identity of a Cause of Action C. The Identity of Cause of Action in Relation to Actions for Limitation of Liability

IV. Some Problems Concerning Identity of the Parties A. Party Identity in Multi-Party Proceedings B. Cases of Procedural Substitution: Subrogation of the Insurer to the Rights of

the Insured C. Other Cases of Procedural Substitution D. Actions for the Annulment of Decisions of Company Organs E. The Solution Retained in Regulation No. 2201/2003 in Respect of Actions

on Parental Responsibility V. The Rule Contained in the Regulation Concerning the Determination of Temporal Priority

A. The Twofold Solution Contemplated by Article 30 Brussels I Regulation B. The Relationship with the Rules Contained in EC Regulation No. 1393/2007

on Service 1. The Problem of Language Requirements 2. The Implications of the Choice among Alternative Modes of Service

VI. A Brief Discussion of Some Proposals for Reform of the Rules on lis alibi pendens and Related Actions Contained in the Brussels I Regulation

A. The Relationship between Exclusive Choice of forum Agreements and lis alibi pendens 1. First Solution: Allowing the Designated Court to Proceed with the Case Even If Subsequently Seized 2. Second Solution: A Reversal of the Rule on lis alibi pendens 3. Third Solution: A Time Limit for Deciding on the Validity of the Jurisdiction Agreement

B. The Requirement of Identity of the Cause of Action in Relation to Actions for a Negative Declaration 1. The Proposal by the Commission 2. The Solution Proposed in the Dropped Hague Draft on Jurisdiction and Enforcement of Judgments

C. Problems Posed by lis pendens, Exclusive Jurisdiction and Related Actions in Intellectual Property Matters 1. The Problems of s.c. Torpedo Actions 2. The Problems Concerning Rules on Related Actions: Limits Due to Exclusive Jurisdiction Rules 3. The Limits Due to Territorial Scope of Rights 4. The Solution Proposed by the Commission

Lis alibi pendens and Related Actions in Civil and Commercial Matters

Yearbook of Private International Law, Volume 11 (2009) 513

I. General Features of lis alibi pendens and Related Actions as Instruments of Coordination among State Jurisdictions

The possibility of concurrent proceedings before the courts of different countries is a typical feature in the current practice of international civil and commercial litiga-tion. In fact, concurrent proceedings are caused by the inherent differences among the State legal orders, both in procedure and substance, so that each litigant is natu-rally drawn to introduce an action before his or her domestic courts whenever the possibility of so doing arises, rather than submitting to the jurisdiction of a foreign court chosen by his or her opponent.1

Concurrent proceedings may take two forms, each of which is subject to different rules depending on whether they concern the same or different, but related, causes of actions. In the first case, a situation will arise that is currently known as lis alibi pendens, which, as will be seen in due course, presupposes iden-tical proceedings, both as concerns the cause of action and the parties (even though the identical nature of the proceedings, particularly under the EC rules, may be appraised with a certain degree of flexibility). In the second case, a situation will arise known as related actions, which presupposes the existence of some form of relevant connection among the causes of action, so that, at least according to the definition contained in the EC rules, joinder of the two sets of proceedings may be advisable to prevent the risk of irreconcilable decisions that may arise if the two actions are tried separately.2

1 Concurrent proceedings before the courts of different countries may arise as a

consequence of ‘forum shopping’ by the parties, which is to a certain extent encouraged within the EU by the choice between alternative fora provided for by EC Regulation No. 44/2001. See, among others, KROPHOLLER J., ‘Das Unbehagen am forum shopping’, in: Festschrift für Karl Firsching zum 70. Geburtstag, ed. by D. HENRICH, B. VON HOFFMANN, München 1985, p. 165 et seq.; SIEHR K., ‘«Forum Shopping» im internationalen Rechts-verkehr’, in: Zeitschrift für Rechtsvergleichung 1984, p. 124 et seq.; JUENGER F. K., ‘Forum Shopping, Domestic and International’, in: Tulane Law Rev. 1989, p. 553 et seq.; JASPER D., Forum Shopping in England und Deutschland, Berlin 1990, p. 20 et seq.; NIBOYET-HOEGY M. L., ‘Les conflits de procédures’, in: Travaux du Comité français de droit international privé, année 1995-1996, Paris 1999, p. 71 et seq., at 79 et seq.; VAREILLES-SOMMIÈRES P. DE, ‘Le forum shopping devant les juridictions françaises’, ibidem, année 1998-1999, Paris 2001, p. 49 et seq., at 56 et seq.; BELL A. S., Forum Shopping and Venue in Transnational Litigation, Oxford 2003, p. 38 et seq.; NUYTS A., ‘Forum shopping et abus du forum shop-ping dans l’espace judiciaire européen’, in: Mélanges John Kirkpatrick, Bruxelles 2004, p. 745 et seq.; MOISSINAC MASSÉNAT V., Les conflits de procédures et de décisions en droit international privé, Paris 2007, p. 3 et seq., at 117 et seq.

2 See Article 28, par. 3, of EC Regulation No. 44/2001. The same definition of related actions, taken from Art. 22, par. 3, of the Brussels Convention of 27 September 1968 concerning jurisdiction and the recognition and enforcement of judgments in civil and com-mercial matters, appears in Article 6, par. 1 of the Regulation, concerning jurisdiction based



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The present study focuses mainly on lis alibi pendens because of its more significant effect on the practice of international civil and commercial litigation and of the wide array of complex legal issues it raises, as documented by the exten-sive body of case law both of the European Court of Justice – with respect to the rules contained formerly in the 1968 Brussels Convention and subsequently in the EC Regulations adopted in the field of judicial cooperation in civil matters3 – and of domestic courts. In particular, attention will be focused on some salient features presented by the uniform rules on lis alibi pendens and, more marginally, on related actions, applicable in cases involving the courts of two or more Member States of the European Union.4 For cases that are not covered by the said rules, the majority of European countries have embodied in their domestic legal systems autonomous rules concerning lis pendens, and, occasionally, related actions pend-ing abroad. In some cases, these rules take the form of specific statutory provi-sions,5 in other cases of a consolidated judicial attitude developed on the basis of

on connection in respect of actions brought against a plurality of defendants. See infra, Part II, sub C.1.

3 Among these Regulations, adopted pursuant to Article 65 of the EC Treaty as introduced by the Treaty of Amsterdam (currently Article 81 TFEU), rules on lis alibi pendens are to be found notably in Regulation No. 44/2001 concerning jurisdiction and the recognition and enforcement of foreign judgments in civil and commercial matters (s. c. ‘Brussels I’ Regulation), Arts. 27-30, and, currently, in Regulation No. 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility (s. c. ‘Brussels II-bis’ Regulation), Art. 19, besides Regulation No. 4/2009 concerning maintenance obligations, Arts. 12-13, not yet in force. The majority of decisions so far rendered by the ECJ in this domain actually concerns the rules as previously contained in the 1968 Brussels Convention, Article 21. See infra, parts II et seq.

4 The relevant requirement for the application of the rules on lis alibi pendens contained either in Regulation No. 44/2001 (‘Brussels I’), Article 27, or in Regulation No. 2201/2003 (‘Brussels II-bis’), Article 19 – as formerly in the 1968 Brussels Convention, Article 21 – is in fact that the concurrent sets of proceedings, besides concerning a subject matter which falls within the scope of application ratione materiae of either instrument, must be pending before the courts of different Member States. See infra, Part II, sub A.1.

5 Such as Article 7 of Italian Law No. 218/1995, providing for the reform of the Ital-ian system of private international law – on which, among others, CONSOLO C., ‘Profili della litispendenza internazionale’, in: Riv. dir. int. 1997, p. 5 et seq.; DI BLASE A., ‘Art. 7 (Pendenza di un processo straniero)’, in: Legge 31 maggio 1995, n. 218, Riforma del sistema italiano di diritto internazionale privato, Commentario, ed. by BARIATTI S., in Nuove leggi civ. comm. 1996, p. 947 et seq.; LUZZATTO R., ‘Articolo 7’, in: Commentario del nuovo diritto internazionale privato, ed. by F. Pocar et al., Padua, 1996, p. 43 et seq.; MIGLIAZZA A.., ‘La litispendenza internazionale e la sua disciplina nella legge 31 maggio 1995, n. 218’, in: Comunicazioni e studi, vol. XXI, Milan 1997, p. 39 et seq.; LUPOI M. A., ‘Litispendenza internazionale e riconoscimento delle sentenze straniere in Italia: due normative allo specchio’, in: Riv. trim. dir. e proc. civ. 1998, p. 1215 et seq.; ID., Conflitti transnazionali di giurisdizioni, Milan 2002, p. 807 et seq.; MARENGO R., La litispendenza internazionale, Torino 2000, p. 98 et seq.; Article 9 of the Swiss federal law on private international law (LDIP) of 1987 – on which, among others, BUCHER A., Droit international privé suisse, T.



the rules applicable in respect of the same occurrences at a domestic level.6 Rules may also be found in a number of international conventions on jurisdiction and/or enforcement of judgments concerning specific matters.7 I/1: Partie générale – Conflits de juridictions, Bâle-Francfort-s.-l.-M. 1998, p. 102 et seq.; DUTOIT B., Droit international privé suisse, Commentaire, II ed., Bâle-Francfort-s.-l.-M. 1997, p. 19 et seq.; VOLKEN P., ‘Art. 9’, in: Zürcher Kommentar zum IPRG, II ed., ed. by Girsberger, Heini, Keller, Kostkievicz, Siehr, Vischer, Volken, II ed., Zürich 2004, p. 111 et seq.; WITTIBSCHLAGER M., Rechtshängigkeit in internationalen Verhältnissen, Basel-Frankfurt a. M. 1994, p. 75 et seq.; Article 14 of the Belgian code of private international law of 2006 – on which, among others, CARLIER J.-Y., ‘Le code belge de droit international privé’, in: Rev. crit. dr. int. pr. 2005, p. 11 et seq., esp. p. 25, note 36; FALLON M., ‘Le droit international privé belge dans les traces de la loi italienne dix ans après’, in: Riv. dir. int. priv. proc. 2005, p. 315 et seq., esp. p. 316 et seq.; FIORINI A., ‘The Codification of Belgian Private International Law: The Belgian Experience’, in: I.C.L.Q., 2005, p. 499 et seq., esp. p. 511 et seq.; FRANCQ S., ‘Das belgische IPR-Gesetzbuch’, in: RabelsZ 2006, p. 235 et seq., esp. p. 272.

6 As in the case of Germany, where the rule in § 261 ZPO has long since been considered applicable by analogy to cases where concurrent proceedings are pending abroad, provided it can be expected on the basis of a prognostic evaluation (Anerkennungsprognose) that the decision to be pronounced by the foreign judge will be entitled to recognition in Germany: see, in this sense, Reichsgericht, 13 April 1901, in Entscheidungen des Reichsgerichts in Zivilsachen (RGZ), vol. 49, p. 340 et seq., esp. pp. 344-345; 25 August 1938, ibidem, vol. 158, p. 145 ss., esp. pp. 147-148; 17 May 1939, ibidem, vol. 160, p. 338 et seq. With regard to these earlier affirmations of the rule, RIEZLER E., Internationales Zivilprozessrecht, Berlin-Tübingen 1949, p. 453 et seq. After World War II, the rule was reaffirmed by Bundesgerichtshof, 2 October 1957, in: Neue juristische Wochenschrift 1958, p. 103 ss., where the German federal supreme court affirmed, some-what emphatically, that the applicability of the domestic rule on lis alibi pendens also to proceedings pending abroad was a ‘für das internationale Recht gültiger Grundsatz’ (at p. 104). See, among others, SCHÜTZE R. A., ‘Die Berücksichtigung der Rechtshängigkeit eines ausländischen Verfahrens’, in: Neue juristische Wochenschrift 1963, p. 1486 et seq., repli-cated by SCHWEICKERT K. D., ‘Die Berücksichtigung der Rechtshängigkeit eines ausländischen Verfahrens’, ibidem, 1964, p. 336 et seq., and further by SCHÜTZE R. A., ibidem, p. 337 et seq. A corresponding rule is applied in Austria: see, among others, Oberster Gerichtshof (OGH), 23 February 1982, in Zeitschrift für Rechtsvergleichung 1984, p. 145 et seq., noted KONECNY A., ‘Zur Einrede der Streitanhängigkeit; OGH, 12 February 1997’, in: IPRax 1999, p. 385 et seq., noted HEIDERHOFF B., ‘Widerklage und ausländische Streitanhängigkeit’, p. 392 et seq.; HOYER H., ‘Zur Streitanhängigkeit im österreichischen internationalen Zivilprozessrecht’, in: Zeitschrift für Rechtsvergleichung 1969, p. 241 et seq.; SCHUMANN E., ‘Internationale Rechtshängigkeit (Streitanhängigkeit)’, in: Festschrift für Winfried Kralik, Wien 1986, p. 301 et seq. The same solution has also been introduced in France, overcoming the former negative attitude, through a decision of the Cour de cassation, 1re Ch. civ., 26 November 1974, Miniera di Fragne, in: Clunet 1975, p. 108 et seq., noted PONSARD A., p. 110 ss.; in: Rev. crit. dr. int. pr. 1975, p. 491 et seq., noted HOLLEAUX D., p. 495 et seq.; in Les grands arrêts de la jurisprudence française de droit international privé, V ed., Paris 2006, p. 504 et seq., noted by the editors ANCEL B., LEQUETTE Y., p. 505 et seq. The French Cour de cassation substantially followed the line of argument proposed by HOLLEAUX D., ‘La litispendance’, in: Travaux du Comité français de droit international privé, années 1971-1973, p. 203 et seq. See also, among others,



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Lis alibi pendens and related actions share a common feature: they achieve a preventive form of coordination among the jurisdictions of different countries, which aims to complement the more traditional form of coordination constituted by the recognition and enforcement of foreign judgments issued by the judges seized by the parties in different countries. In this respect, it can be seen that the applica-tion of rules concerning lis alibi pendens or related actions may foster the recogni-tion and enforcement of foreign judgments, since they tend to prevent the occur-rence of a frequent cause of refusal of recognition, given by the existence of a contrast among judgments.8

Nevertheless, the effects produced by instruments of coordination among jurisdictions, like lis alibi pendens and related actions, are not limited to the proce-dural sphere. In fact, the application of rules concerning either situation is likely to produce the effect that a cause of action will be treated by a judge in a legal order different than the one to which belongs the judge originally seized by one of the parties. This will in turn cause the action to be decided under a law that may be different from that which would have been applied by the judge originally seized, since every judge is, in principle, and – except in cases where uniform conflict of laws or substantive rules are applicable – subject to his or her own domestic conflict of laws rules. As a result, both lis alibi pendens and related actions contribute indirectly to achieving coordination among legal orders and, more specifically, among systems of private international law, which is pursued by the recognition and enforcement of foreign judgments. Under the recognition and enforcement of foreign judgments, the legal order of the State of recognition gives

GAUDEMET-TALLON H., ‘La litispendance internationale dans la jurisprudence française’, in: Mélanges dédiés à Dominique Holleaux, Paris 1990, p. 127 et seq.; MOISSINAC MASSÉNAT V. (note 1), p. 249 et seq.

7 Among these, well-known examples are given by the Geneva Convention of 19 May 1956 on contracts for the carriage of goods by road (CMR), Article 31.2; the Hague Convention of 1 June 1970 on the recognition of divorces and legal separations, Article 12; the Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the pro-tection of children, Article 13. For an examination of the rules on lis alibi pendens contained in these conventions as well as in others, including bilateral conventions, and for further bibliographical references we refer to MARONGIU BUONAIUTI F. (note *), p. 89 et seq.

8 The close relationship existing between the rules on lis alibi pendens and those concerning the recognition and enforcement of foreign judgments has long been recognized in legal literature: see, among others, MORELLI G., Diritto processuale civile internazionale, II ed., Padua, 1954, p. 168 et seq.; RIEZLER E. (note 6), p. 451 et seq., esp. p. 453 et seq.; HABSCHEID W. J., ‘Zur Berücksichtigung der Rechtshängigkeit eines ausländischen Verfahrens’, in: RabelsZ 1967, p. 254 et seq.., esp. p. 255 et seq.; SCHÜTZE R. A., Die Berücksichtigung der Rechtshängigkeit eines ausländischen Verfahrens, ibidem, p. 233 et seq., spec. p. 234 et seq.; ID., ‘Die Wirkungen ausländischer Rechtshängigkeit im inländischen Verfahren’, in: Zeitschr. f. Zivilprozess 1991, p. 136 et seq.; GEIMER R., Internationales Zivilprozeßrecht, V ed., Köln 2005, p. 803 et seq.; MOISSINAC MASSÉNAT V. (note 1), p. 25 et seq., who qualifies the taking into consideration of a situation of lis alibi pendens as a ‘corollaire de l’effet des jugements étrangers’.



effect to a legal situation created in the State of origin through a judgment issued under the law applied pursuant to the conflict of laws rules of the latter State. By preventing contrasting judgments, lis alibi pendens and related actions may also create material harmony among legal solutions, which is traditionally pursued by the recognition of foreign judgments, in that they both tend to create a legal framework that is favourable to the introduction of the effects of the foreign judgment within the legal order of the State of recognition.9

II. The EC Rules on lis pendens and Related Actions Contained in Regulation No. 44/2001 (‘Brussels I’)

The rules on lis alibi pendens and related actions, which were previously contained in the Brussels Convention of 27 September 1968,10 are as of 1 March 2002 found

9 The attitude of the rules providing for the recognition and enforcement of foreign

judgments to act as ‘disguised additional allocation rule(s)’ has been underlined by WENGLER W., The General Principles of Private International Law, in Recueil des Cours, vol. 104 (1961-III), p. 273 et seq., esp. p. 443 et seq. See, in this respect, also PICONE P., Les méthodes de coordination entre ordres juridiques en droit international privé, Cours général de droit international privé, ibidem, vol. 276 (1999), p. 9 et seq., esp. p. 259 et seq. The differences in the mode in which international uniformity of legal solutions is attained by means of the recognition of foreign judgments, which gives effect to the foreign rules as concretely applied by the foreign judge to the case at hand, and by means of the rules of conflict of laws, which provide for the application of foreign law in its general and abstract form by the domestic judge, have been underlined in particularly neat terms by CONDORELLI L., La funzione del riconoscimento di sentenze straniere, Milan 1967, p. 142 et seq. The close relationship existing between the rules on conflict of laws and the rules on the recog-nition of foreign judgments, including the fact that they both achieve, although through different means, a coordination among legal systems is underlined also by VISCHER F., ‘Introduzione alla legge’, in: Il nuovo diritto internazionale privato in Svizzera, Milan 1990, p. 3 et seq., esp. p. 11 et seq., with regard to the Swiss federal law on private international law (LDIP) of 1987. The point, which had to be summarized here in its most essential terms, is more extensively discussed in MARONGIU BUONAIUTI F. (note *), p. 44 et seq., to which we refer also for further bibliographical references.

10 The originating text of the Brussels Convention, concluded on 27 September 1968 among the six initial Member States pursuant to the mandate conferred upon them by former Article 220 EEC Treaty (then Article 293 EC Treaty) is published in OJ, L 299, 31 Decem-ber 1972, p. 32 et seq., and has been amended in turn by the Convention for the accession of Denmark, Ireland and the U.K. of 9 October 1978, in OJ, L 304, 30 October 1978, p. 1 et seq.; by the Convention for the accession of Greece of 25 October 1982, in OJ, L 388, 31 December 1982, p. 1 et seq.; by the Convention for the accession of Spain and Portugal of 26 May 1989, in OJ, L 285, 3 October 1989, p. 1 et seq.; lastly by the Convention for the accession of Austria, Finland and Sveden of 29 November 1996, in OJ, C 15, of 15 January 1997, p. 1 et seq. A consolidated version is published in OJ, C 27, 26 January 1998, p. 1 et seq.



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in EC Regulation No. 44/2001 of 22 December 2000, concerning jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which is also known as the ‘Brussels I’ Regulation11 because it substantially replaces the Brussels Convention.12 Those rules on lis pendens are substantially replicated, though with some modifications reflecting the different subject-matter at issue, in EC Regulation No. 2201/2003 concerning jurisdiction and the recogni-tion and enforcement of judgments in matrimonial matters and in matters of parental responsibility, which is also known as ‘Brussels II-bis’ Regulation13

11 In OJ, No. L 12, 16 January 2001, p. 1 et seq. See generally on the rules on lis

alibi pendens contained in the Regulation, among others, BRIGGS A., Civil Jurisdiction and Judgments, IV ed., ed. by P. Rees, London, Singapore 2005, p. 222 et seq.; CARBONE S. M., Lo spazio giudiziario europeo in materia civile e commerciale. Da Bruxelles I al regola-mento CE n. 805/2004, V ed., Turin 2006, p. 212 et seq.; GAUDEMET-TALLON H., Compé-tence et exécution des jugements en Europe. Règlement n° 44/2001. Conventions de Bruxelles et de Lugano, III ed., Paris 2002, p. 268 et seq.; GEIMER R., SCHÜTZE R. A., Europäisches Zivilverfahrensrecht, Kommentar, II ed., München 2004, p. 444 et seq.; KROPHOLLER I., Europäisches Zivilprozeßrecht, Kommentar, VIII ed., Frankfurt a. M. 2005, p. 349 et seq.; LEIBLE S., ‘Rechtshängigkeit und im Zusammenhang stehende Verfahren’, in: Europäisches Zivilprozessrecht, ed. by Th. Rauscher, II ed., München 2006, p. 492 et seq.; SALERNO F., Giurisdizione ed efficacia delle decisioni straniere nel regolamento (CE) n. 44/2001, III ed., Padua 2006, p. 274 et seq.; SCHLOSSER P., EU-Zivilprozessrecht, München 2003, p. 180 et seq.; ROMANO G. P., ‘Litispendenza e connessione di cause nel Regolamento n. 44’, in: Diritto internazionale privato e cooperazione giudiziaria in materia civile, ed. by A. Bonomi, Turin 2009, p. 103 et seq.

12 As clarified in the Preamble to Regulation No. 44/2001, pars. 5 and 19, a close link of continuity exists between the Regulation and the Brussels Convention, which has to be taken into account to interpret the two instruments. The ECJ has on some occasions pursued this aim by taking into account the amendments introduced by the Regulation in respect of the rules as contained in the Convention as ratio scripta in interpreting the provi-sions of the latter: see BONADUCE C., ‘L’interpretazione della convenzione di Bruxelles del 1968 alla luce del regolamento n. 44/2001 nelle pronunce della Corte di giustizia’, in: Riv. dir. int., 2003, p. 746 et seq.

13 In OJ, L 338, 23 December 2003, p. 1 et seq. The rules on lis alibi pendens contained in Article 19 of the Regulation provide two different regimes for proceedings concerning matrimonial matters, under par. 1, which extends the rule to proceedings concerning divorce, legal separation and marriage annulment between the same parties, and proceedings concerning parental responsibility, under par. 2, which requires the causes of action to be identical as well as the child concerned. See generally, concerning the said rules, among others, BARATTA R., ‘Il regolamento comunitario sul diritto internazionale privato della famiglia’, in: Diritto internazionale privato e diritto comunitario, ed. by P. Picone, Padua, 2004, p. 163 et seq., esp. p. 179 et seq.; ID., Scioglimento ed invalidità del matrimonio nel diritto internazionale privato, Milan 2004, p. 177 et seq.; BIAGIONI G., ‘Il nuovo regolamento comunitario sulla giurisdizione e sull’efficacia delle decisioni in materia matrimoniale e di responsabilità dei genitori’, in: Riv. dir. int., 2004, p. 991 et seq., esp. p. 1021 et seq.; DI LIETO A., ‘Il regolamento n. 2201/2003 relativo alla competenza, al riconoscimento e all’esecuzione delle decisioni in materia matrimoniale e in materia di responsabilità genitoriale’, in: Dir. comun. scambi int. 2004, p. 117 et seq., esp. p. 128 et seq.; MCELEAVY P., ‘Brussels II Bis: Matrimonial Matters, Parental Responsibility, Child



because it replaces the previous EC Regulation No. 1347/2000, known as ‘Brussels II,’14 and, lastly, in Regulation No. 4/2009 concerning maintenance obligations.15

A. Lis pendens in the Brussels I Regulation – General Framework

The rules on lis alibi pendens contained in ‘Brussels I,’ to which we shall mainly refer in this study, establish three essential requirements for a situation of lis pendens: (1) there must be two concurrent proceedings that share the same cause of action, (2) those proceedings must involve the same parties, and (3) one of the two actions must have been initiated before the other.

Abduction and Mutual Recognition’, in: I.C.L.Q., 2004, p. 503 et seq.; ID., The Communita-rization of Divorce Rules: What Impact for English and Scottish Law?, ibidem, p. 605 et seq., esp. p. 623 et seq.; DILGER J., Die Regelungen zur internationalen Zuständigkeit in Ehesachen in der Verordnung (EG) Nr. 2201/2003, Tübingen 2004, p. 235 et seq.; SPELLENBERG U., IntVerfREhe (Internationales Verfahrensrecht in Ehesachen), in J. von Staudingers Kommentar zum Bürgerlichen Gesetzbuch, Neubearbeitung, Berlin 2005, p. 186 et seq.; ESPINOSA CALABUIG R., Custodia y visita de menores en el espacio judicial europeo, Madrid-Barcelona 2007, p. 60 et seq.

14 In OJ, L 160, 30 June 2000, p. 19 et seq. The Brussels II Regulation had a nar-rower scope of application, since it concerned only matrimonial matters and proceedings concerning parental responsibility on children common to the spouses. Furthermore, under the Regulation jurisdiction on the latter proceedings was made dependant, according to Article 3, par. 3, on the pendency of matrimonial proceedings and ceased as soon as those proceedings terminated. See generally, concerning the rules on lis alibi pendens in the said Regulation, among others, ANCEL B., MUIR WATT H., ‘La désunion européenne, le Règle-ment dit «Bruxelles II»’, in: Rev. crit. dr. int. pr. 2001, p. 403 et seq., esp. p. 430 et seq.; BONOMI A., ‘Il regolamento comunitario sulla competenza e sul riconoscimento in materia matrimoniale e di potestà genitoriale’, in: Riv. dir. int. 2001, p. 298 et seq., esp. p. 335 et seq.; DAVÌ A, ‘Il diritto internazionale privato italiano della famiglia e le fonti di origine internazionale o comunitaria’, ibidem 2002, p. 861 et seq., esp. p. 881, 895 et seq.; GAUDEMET-TALLON H., ‘Le Règlement n° 1347/2000 du Conseil du 29 mai 2000: «Compé-tence, reconnaissance et exécution des décisions en matière matrimoniale et en matière de responsabilité parentale des enfants communs»’, in: Clunet 2001, p. 381 et seq., esp. p. 400 et seq.; GRUBER U. P., ‘Die neue «europäische Rechtshängigkeit» bei Scheidungsverfahren’, in: FamRZ – Zeitschrift für das gesamte Familienrecht 2000, p. 1129 et seq., esp. p. 1131 et seq.

15 Council Regulation No. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition, enforcement and cooperation in matters of maintenance obligations, in OJ, L 7, 10 January 2009, p. 1 et seq. The Regulation, which goes into effect on 11 June 2011 subject to the entry into force in respect of the EU of the Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations – see on the relationship between the two instruments BEAUMONT P. ‘International Family Law in Europe – the Maintenance Project, the Hague Conference and the EC: A Triumph of Reverse Subsidiarity’, in: RabelsZ 2009, p. 509 et seq. – , reproduces in Articles 12 and 13 the same rules on lis alibi pendens and related actions as contained in Articles 27 and 28 of Brussels I Regulation.



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1. The Scope of Application ratione loci

Apart from these requirements, which are intrinsic to lis alibi pendens, the rules contained in Regulation No. 44/2001 and in the other above-mentioned regulations only apply when the two sets of proceedings16 are pending before courts of differ-ent Member States, to the exclusion of Denmark.17 The difficulties posed by this exclusion have been overcome through the introduction of rules identical to those contained in Brussels I in an apposite convention concluded between Denmark and the EC, which became effective on 1 July 2007.18 The same rules on lis pendens as contained in the Regulation have also subsequently been introduced in the new Lugano Convention signed on 30 October 2007, which attempts to align the rules applicable in the relations with EFTA countries with those in force among EC Member States.19 2. The Irrelevance of the Domicile of the Defendants

In contrast to the other provisions concerning jurisdiction contained in the Regula-tion, no relevance is given to the domicile of the defendants in either set of pro-ceedings, which may be located in the same or in different Member States as well as in third countries. In fact, the irrelevance of the ground upon which the jurisdic-

16 Which must fall within the scope of application ratione materiae and ratione

temporis of the relevant Regulation. 17 The Regulation – just as any other EC act adopted pursuant to Title IV EC Treaty

– does not apply to Denmark, pursuant to the Protocol concerning the position of Denmark attached to the Treaty of Amsterdam of 2 October 1997, in OJ, C 340, 10 November 1997, p. 101 et seq.

18 See the Agreement between the European Community and the Kingdom of Den-mark on jurisdiction and the recognition and enforcement of judgments in civil and com-mercial matters, signed in Brussels on 19 October 2005, in OJ, L 299, 16 November 2005, p. 62 et seq. The conclusion of the agreement has been approved by the Council on behalf of the Community by a decision of 27 April 2006, in OJ, L 120, 5 May 2006, p. 23, and the latter went into effect on 1st July 2007, as from notice in OJ, L 94, 4 April 2007, p. 70.

19 See the Convention on jurisdiction and the recognition and enforcement of judg-ments in civil and commercial matters, signed in Lugano on 30 October 2007, in OJ, L 339, 21 December 2007, p. 3 et seq. The conclusion of the convention has been approved by the Council on behalf of the Community by a decision of 27 November 2008, in OJ, L 147, 10 June 2009, p. 1 et seq. and has been ratified by the Community on 18 May 2009. The Convention is in force since 1 January 2010 between the EU, Denmark and Norway. Following a decision by the Swiss Federal Council of 31 March 2010, it will be ratified by Switzerland with effect from 1st January 2011. Generally, on some issues concerning the applicability of the provisions on lis alibi pendens and related actions contained in the new convention in Switzerland, KREN KOSTKIEWICZ J., ‘Rechtshängigkeit und Konnexität’, in: La Convention de Lugano. Passé, présent et devenir, ed. by A. Bonomi, E. Cashin Ritaine, G. P. Romano, Zürich 2007, p. 109 et seq., esp., concerning the new rule for the determination of the temporal element under Article 30, p. 115 et seq.



tion of either court is based is a cornerstone of the Regulation’s system for resolv-ing concurrent proceedings, as previously affirmed by the ECJ in Overseas Union Insurance regarding the 1968 Brussels Convention. This is due to the close rela-tionship, already stressed above, between the rules on lis alibi pendens and related actions and those on the recognition and enforcement of judgments contained in the Regulation, which apply to any judgment falling within the substantial scope of application of the latter and handed down by a judge of a different Member State, irrespective of the domicile of the defendant to the action and, in principle, of the ground on which the jurisdiction of the judge is based.20

B. The Principle of Reciprocal Faith among the Judicial Systems of EU Member States

1. The Exclusion of a Review of the Jurisdiction of the Judge First Seized

As a corollary to the said rule, it must be noted that the court first seized is, in prin-ciple, given total control over its jurisdiction. In fact, as clearly stressed by Article 27, par. 1 of the Regulation, the court second seized must suspend its proceedings until the court first seized has determined whether it has jurisdiction. Pursuant to par. 2, it is only after the court first seized has affirmed its jurisdiction that the court second seized must decline jurisdiction. This rule was modified by the 1989 Donostia-San Sebastian Convention for the accession of Spain and Portugal to the Brussels Convention to prevent the risk, which the original text left open, that the court first seized may determine that it had no jurisdiction after the court second seized had dismissed the action.21

20 ECJ, 27 June 1991, case C-351/89, Overseas Union Insurance Ltd. et al. v. New Hampshire Insurance Co., in ECR, 1991, p. I-3317 et seq., point 13 et seq., at p. I-3348 et seq. With regard to this decision, among others, BRIGGS A., The Brussels Convention, I. Overseas Union Insurance Ltd., Deutsche Ruck UK Insurance Ltd. and Pine Top Insurance Co. Ltd. v. New Hampshire Insurance Co., in: Yearb. Eur. Law 1991, p. 521 et seq.; DI BLASE A., Connessione e litispendenza nella convenzione di Bruxelles, Padua 1993, p. 125 et seq.; GAUDEMET-TALLON H., ‘Note’ in: Rev. crit. dr. int. pr., 1991, p. 769 et seq.; HARTLEY T. C., ‘Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters - Article 21: Defendant not Domiciled in a Contracting State’, in: Eur. Law Rev. 1992, p. 75 et seq.; HUET A., ‘Chronique’, in: Clunet, 1992, p. 493 et seq.; RAUSCHER TH., GUTKNECHT U., ‘Teleologische Grenzen des Art. 21 EuGVÜ?’, in: IPRax 1993, p. 21 et seq. As underlined by FERNÁNDEZ ARROJO D. P., ‘Exorbitant and Exclusive Grounds of Jurisdiction in European Private International Law: Will They Ever Survive?’, in: Festschrift für Erik Jayme, Band I, München 2004, p. 169 et seq., esp. p. 174 et seq., jurisdiction of the court first seized in a different Member State might even be based on an exorbitant ground of jurisdiction since, provided the defendant is not domiciled in a Member State – in which case the application of these rules is excluded under Article 3, par. 2 of the Regulation – , this would cause no exception to the application of the rules on lis alibi pendens as of those on the recognition of foreign judgments.

21 The Convention for the accession of Spain and Portugal to the Brussels Conven-tion, signed at Donostia-San Sebastian on 26 May 1989, has amended the text of Article 21



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2. The Exceptions in Cases of Exclusive Jurisdiction, Not Including Choice of Court Agreements

As the ECJ stressed in Overseas Union Insurance in respect of the rules on lis pendens contained in the Brussels Convention, the only circumstance in which the court second seized may review the jurisdiction of the court first seized is when the former is vested with exclusive jurisdiction.22 The Court, however, recently clari-fied in Gasser that this option is limited to only those cases where the exclusive jurisdiction of the court second seized directly derives from the provisions of the Convention, i.e. the Regulation, and does not extend to cases where the court sec-ond seized has been designated in an agreement by the parties providing for exclu-sive jurisdiction. When an agreement between the parties is involved, it is up to the court first seized to assess the validity and enforceability of the agreement and, in such a case, to decline jurisdiction.23 of the Convention in order to align it with the corresponding provision of the Lugano Convention concluded on 16 September 1988 with EFTA Member States, which provided for the duty of the judge second seized to merely suspend proceedings until the court first seized has ruled on its jurisdiction. The rule as originally formulated in the 1968 Brussels Convention required the judge second seized to decline its jurisdiction unless the jurisdiction of the court first seized had been challenged, in which case the judge second seized could merely suspend proceedings. See the Report on the Accession Convention by De Almeida Cruz, Desantes Real, Jenard, in OJ, No. C 189, 28 July 1990, p. 35 et seq., par. 28, at p. 48; also TRUNK A., Die Erweiterung des EuGVÜ-Systems am Vorabend des europäischen Binnenmarktes, Das Lugano-Übereinkommen und das EuGVÜ-Beitrittsübereinkommen von San-Sebastian, München 1991, esp. p. 52 et seq., p. 114 et seq.

22 ECJ, 27 June 1991, case C-351/89, Overseas Union Insurance Ltd. (note 20), point 26, at p. I-3351. The solution reached by the Court of Justice is consistent with the special treatment reserved to rules granting exclusive jurisdiction in the context of the recognition and enforcement of judgments; whereas as a general rule no control of the jurisdiction of the court of origin is allowed within the system of the Regulation. The violation of rules of exclusive jurisdiction contained in Article 22 of the Regulation, as well as of those concerning contracts of insurance and consumer contracts, is especially contemplated by Article 35, par. 1, of the Regulation as a ground for refusal of recognition. The solution adopted by the ECJ has been followed by English Court of Appeal in Speed Investments Ltd. v. Formula One Holdings Ltd. (No. 2), in Weekly Law Reports, 2005, vol. 1, p. 1936 et seq., esp. p. 1946 et seq.

23 ECJ, 9 December 2003, case C-116/02, Eric Gasser GmbH. v. MISAT Srl., in ECR, 2003, p. I-14693 et seq. See with regard to this decision, among others, MUIR-WATT H., ‘Note’ in: Rev. crit. dr. int. pr., 2004, p. 459 et seq.; GROTHE H., ‘Zwei Einschränkungen des Prioritätsprinzips im europäischen Zuständigkeitsrecht: ausschließliche Gerichtsstände und Prozessverschleppung’, in: IPRax 2004, p. 205 et seq.; HUET A., ‘Chronique’, in: Clunet 2004, p. 641 et seq.; the decision has attracted severe criticism by the English doctrine: in particular, HARTLEY T. C., ‘Choice-of-court Agreements, lis pendens, Human Rights and the Realities of International Business: Reflections on the Gasser Case’, in: Le droit international privé: esprit et méthodes, Mélanges en l’honneur de Paul Lagarde, Paris 2005, p. 383 et seq., esp. p. 387 ss.; ID., The Modern Approach to Private International Law. International Litigation and Transactions from a Common Law Perspective, General Course on Private International Law, in: Recueil des Cours, t. 319, 2006, p. 9 et seq., esp. p.



The rule stressed by the ECJ in both the Overseas Union Insurance and the Gasser cases is inspired to the principle of reciprocal faith among the judicial sys-tems of the Member States, according to which the judges of each Member State are expected to trust the others’ reliability in correctly applying the rules contained in the Regulation as well as any other rule instrumental to their implementation – including any rule which may be relevant regarding the validity and enforceability of a choice of forum agreement – and may not substitute themselves in this task.24

3. The Irrelevance of the Excessive Average Length of Court Proceedings in the Member State Concerned

The Court has derived other consequences from the said principle. First, as stressed in the Gasser case, there is no exception to the duty of the court second seized to suspend proceedings because the court first seized belongs to a judicial system known for excessively long court proceedings, since the judicial systems of the Member States are deemed equal with regard to the application of Community rules on jurisdiction.25

177 et seq.; MANCE J., ‘Exclusive Jurisdiction Agreements and European Ideals’, in: Law Quarterly Rev. 2004, p. 357 et seq.; MERRETT L., ‘The Enforcement of Jurisdiction Agree-ments Within the Brussels Regime’, in: I.C.L.Q. 2006, p. 315 et seq., esp. p. 327 et seq.; a more balanced approach appears to be adopted by FENTIMAN R., ‘Jurisdiction Agreements and Forum Shopping in Europe’, in: Journal of Int. Banking and Financial Law, 2006, p. 304 ss., with reference to a subsequent English High Court (Commercial Court) decision, JP Morgan LTD v Primacom AG, [2005] EWHC 508 (Comm), which followed the solution adopted by the ECJ. As observed by the latter Author, the said decision actually did not affirm the priority of lis alibi pendens rules on choice of court agreements: what it actually did is affirm that it is for the judge first seized to decide on the validity of the agreement. Similar views are expressed, more extensively, by ID., ‘Parallel Proceedings and Jurisdiction Agreements in Europe’, in: Forum Shopping in the European Judicial Area, ed. by P. de Vareilles-Sommières, Oxford-Portland, Oregon, 2007, p. 27 et seq., esp. p. 31 et seq.

24 See, for a discussion of the role of the principle of mutual trust among the judicial systems of the Member States within the framework of the ‘Brussels I’ Regulation and of the weight attached to it by the ECJ in its more recent case law, PONTIER J. A., BURG J.H.M., E.U. Principles on Jurisdiction and Recognition and Enforcement of Judgments in Civil and Commercial Matters, According to the Case Law of the European Court of Justice, The Hague 2004, p. 69 et seq.; ROMANO G. P., ‘Principe de sécurité juridique, système de Bruxelles I/Lugano et quelques arrêts récents de la CJCE’, in: La Convention de Lugano. Passé, présent et devenir (note 19), p. 165 et seq., esp. p. 182 et seq.; ID., ‘Le principe de sécurité juridique à l’épreuve des arrêts Gasser et Owusu’, in: Cahiers de droit eur. 2008, p. 175 et seq., esp. p. 185 et seq.

25 ECJ, 9 December 2003, case C-116/02, Eric Gasser GmbH. (note 23), points 70 et seq. See, with regard to this further issue addressed by the ECJ in this decision, in particular, SCHILLING TH., ‘Internationale Rechtshängigkeit vs. Entscheidung binnen angemessener Frist. Zum Zusammenspiel von Art. 6 I EMRK, Art. 307 EGV und Art. 27 EuGVV’, in: IPRax 2004, p. 294 et seq.; FAWCETT J. J., ‘The Impact of Article 6 (1) of the ECHR on Private International Law’, in: I.C.L.Q., 2007, p. 1 et seq., esp. p. 13 et seq.; FENTIMAN R.,



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4. The Exclusion of the Power to Issue Restraining Orders, Like Anti-Suit Injunctions

Second, as the ECJ affirmed in Turner, the duty to respect another court’s assess-ment of its own jurisdiction implies that Member States cannot use domestic law to give their courts the power to issue restraining orders like anti-suit injunctions, which, even though formally directed to the parties, may effectively preclude another Member States’ court from exercising the jurisdiction derived from a pro-vision of the Convention or, currently, the Regulation.26

The ECJ has recently extended that rule in Allianz (formerly RAS) to cases where an anti-suit injunction is issued by a Member State court to protect the right of one of the parties to have its case submitted to arbitration, notwithstanding the fact that arbitration is excluded from the scope of application of the Regulation.27 In fact, the Court has considered the arbitration exclusion irrelevant in all cases where an injunction is aimed at deterring the defendant from entertaining an action before a court in another Member State, in a situation which falls within the scope of application of the Regulation, regardless of the fact that an issue of validity or enforceability of the arbitration clause may arise as a preliminary question before that court.28 According to the same principle of reciprocal faith, it will be for the ‘Access to Justice and Parallel Proceedings in Europe’, in: Cambridge Law Journal 2005, p. 312 et seq.; HARTLEY T. C., Choice-of-court Agreements (note 23), p. 389 et seq.

26 ECJ, 27 April 2004, case C-159/02, Turner v. Grovit, in ECR, 2004, p. I-3565 ss. See on this decision, among others, MOISSINAC MASSÉNAT V. (note 1), p. 123 et seq.; MUIR-WATT H., Note in Rev. crit. dr. int. pr., 2004, p. 659 et seq.; NIBOYET M.-L., ‘Le principe de confiance mutuelle et les injonctions anti-suit’, in: Forum Shopping in the European Judi-cial Area (note 23), p. 77 et seq.; RAUSCHER TH., ‘Unzulässigkeit einer anti-suit injunction unter Brüssel I’, in: IPRax 2004, p. 405 et seq.; for some critical remarks from the perspec-tive of the English doctrine, BRIGGS A., ‘Anti-suit Injunctions and Utopian Ideals’, in: Law Quarterly Rev. 2004, p. 529 et seq.; HARTLEY T. C., ‘The European Union and the System-atic Dismantling of the Common Law of Conflict of Laws’, in: I.C.L.Q. 2005, p. 813 et seq., esp. p. 821 et seq.; ID., The Modern Approach (note 23), p. 174 et seq.

27 ECJ, 10 February 2009, case C-185/07; Allianz S.p.A (formerly Riunione Adriatica di Sicurtà S.p.A.), Generali Assicurazioni Generali S.p.A. v. West Tankers Inc., in ECR, 2009, p. I-663 et seq. The case had been referred to the ECJ by the House of Lords, West Tankers Inc. v. RAS Riunione Adriatica di Sicurtà SpA, [2007] U.K.H.L. 4, available on <http://www.bailii.org>; Résumé in: Rev. crit. dr. int. pr., 2007, p. 434 et seq., noted USUNIER L., p. 439 et seq. See also, concerning the question as referred to the ECJ, DUTTA A., HEINZE CH. A., ‘Anti-suit injunctions zum Schutz von Schiedsvereinbarungen. Zur Vorlage des House of Lords im Fall West Tankers an den EuGH’, in: RIW, 2007, p. 411 et seq.; ID., ‘Enforcement of Arbitration Agreements by Anti-Suit Injunctions in Europe – From Turner To West Tankers’, in: this Yearbook, 2007, p. 415 et seq.; FENTIMAN R., ‘Arbitration and the Brussels Regulation’, in: Cambridge Law Journal 2007, p. 493 et seq.

28 As had been clearly stressed by the ECJ in two previous decisions concerning the interpretation of the exclusion of arbitration from the scope of application of the Brussels Convention – ECJ, 25 July 1991, case C-190/89, Marc Rich v. Società Italiana Impianti, in ECR, 1991, p. I-3855 et seq., points 13 et seq., 22 et seq.; ECJ, 17 November 1998, case C-391/95, Van Uden Maritime BV v. KG in Firma Deco-Line, in ECR, 1998, p. I-7091 et seq.,



court seized to determine the validity and enforceability of the arbitration clause within the assessment it is expected to make of its own jurisdiction pursuant to the Regulation.29

C. The Rules Concerning Related Actions under Article 28 of the Brussels I Regulation

The rules contained in Article 27 of the Brussels I Regulation concerning lis alibi pendens are completed by those formulated in Article 28 in respect of related actions. 1. The Definition of Related Actions

Article 28 substantially replicates Article 22 of the Brussels Convention, repro-ducing in paragraph 3 the same definition of related actions. Accordingly, two actions are deemed to be related when they present such a close connection that it is expedient to have them treated jointly in order to prevent the risk of irreconcil-able judgments that may arise if they were treated separately.30 The ECJ interpreted

points 23 et seq., esp. point 34 – the relevant criterium for establishing whether or not an action falls within the scope of application of the Convention – the same applying to the Regulation – is given by the main object of the plaintiff’s claim and not that of preliminary questions which may eventually arise.

29 See, for some first comments to the decision, BALTHASAR S., RICHERS R., ‘Europäisches Verfahrensrecht und das Ende der anti-suit injunction’, in: RIW, 2009, p. 351 et seq.; GAJA G., ‘Convenzione di New York sull’arbitrato e anti-suit injunctions’, in: Riv. dir. int. 2009, p. 503 et seq.; ILLMER M., ‘Anti-suit injunctions zur Durchsetzung von Schiedsvereinbarungen in Europa – der letzte Vorhang ist gefallen’, in: IPRax 2009, p. 312 et seq.; NOUSSIA K., ‘Antisuit Injunctions and Arbitration Proceedings: What does the Future Hold?’, in: Journal of Int. Arbitration 2009, p. 311 et seq., esp. p. 331 et seq.; MARONGIU BUONAIUTI F., ‘Emanazione di provvedimenti inibitori a sostegno della compe-tenza arbitrale e reciproca fiducia tra i sistemi giurisdizionali degli Stati membri dell’Unione europea’, in: Rivista dell’arbitrato 2009, p. 245 et seq., to which we refer for further discus-sion of the matter.

30 The same requirement has been introduced by the Brussels I Regulation in the provision of Article 6, par. 1, concerning jurisdiction based on connection with regard to actions against a plurality of defendants, after having been considered substantially inherent in the corresponding rule of Article 6, par. 1, of the Brussels Convention, which did not expressly provide a connection requirement: see ECJ, 27 September 1988, case 189/87, Kalfelis v. Banque Schröder, in ECR, 1988, p. 5579 et seq., esp. points 8 et seq., p. 5583. The Court has subsequently affirmed that the provision in Article 6, par. 1, is to be inter-preted restrictively, since it implies a derogation from the general rule of the forum of the defendant’s domicile: see in particular ECJ, 27 October 1998, case C-51/97, Réunion européenne, in ECR, 1998, p. I-6511 et seq., esp. points 46 et seq., p. I-6548 et seq. See, with regard to the case law of the ECJ concerning Article 6.1 of the Convention, among others, DI BLASE A. (note 20), p. 39 et seq.; MARI L., Il diritto processuale civile della



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this definition expansively in its well known Tatry decision,31 holding that the risk of irreconcilable judgments is not intended to mean only decisions that would pro-duce mutually exclusive effects, as under Article 27, par. 3 of the Brussels Convention according to the interpretation the Court had given in its previous Hoffmann decision.32 The Court observed, in fact, that whereas Article 27, par. 3 – which is currently to be found in identical terms in Article 34, par. 3, Brussels I Regulation – provides for an exception to the general rule requiring automatic convenzione di Bruxelles, I, Il sistema della competenza, Padua 1999, p. 455 et seq.; QUIÑONES ESCÁMEZ A., El foro de la pluralidad de demandados en los litigios internacionales, Madrid 1996, p. 56 et seq. With regard to Article 6.1 of the Regulation the ECJ, 11 October 2007, case C-98/06, Freeport Plc v. Arnoldsson, in ECR, 2007, p. I-8319 et seq., points 37 et seq., p. I-8353 et seq., has adopted a less restrictive attitude, affirming that the risk of irreconcilable judgments ensuing from separate decisions is a sufficient require-ment for the application of the rule, without need for verification regarding the identity of the legal foundation of the actions. Furthermore, as affirmed by the ECJ in its 13 July 2006 decision, case C-103/05, Reisch Montage AG v. Kiesel Baumaschinen HGmbH, in ECR, 2006, p. I-6827 et seq., points 27 et seq., at p. I-6849 et seq., no relevance is given to domestic rules on admissibility of actions for the purposes of the application of the rule in Article 6.1 (see, for a critical comment, D’ALESSANDRO E., La connessione tra controversie transnazionali. Profili sistematici, Turin 2009, p. 77 et seq.). Nonetheless, as affirmed by the ECJ in its decision of 13 July 2006, case C-539/03, Roche Nederland BV v. Primus, in ECR, 2006, p. I-6535 et seq., point 26, at p. I-6580, the risk of irreconcilable judgments must concern the same situation both in fact and in law. Further limitations on the application of the rule may derive from rules on exclusive jurisdiction under Article 22 of the Regulation (ECJ, 13 July 2006, case C-4/03, GAT v. LuK, in ECR, 2006, p. I-6509 et seq., points 25 et seq., at p. I-6532 et seq., concerning questions of validity of an intellectual property right, see infra, Part VI, sub C.2 et seq.) and from rules providing for a special regime of jurisdic-tion in respect of specific contractual relationships (ECJ, 22 May 2008, case C-462/06, Glaxosmithcline v. Rouard, in ECR, 2008, p. I-3965 et seq., concerning actions related to an employment contract, see MARINO S., ‘Competenze speciali e connessione nel regolamento CE n. 44/2001: una recente sentenza della Corte di giustizia delle Comunità europee’, in: Contratto e impresa/Europa 2009, p. 285 et seq.).

31 ECJ, 6 December 1994, case C-406/02, Tatry (Owners of the cargo lately laden on board the ship) v. Maciej Rataj (Owners of the ship), in: ECR, 1994, p. I-5439 et seq., points 49 et seq., at p. I-5477 et seq. The diversity of the aim pursued by Article 22 of the Brussels Convention from that of Article 6, par. 1 of the Convention had been previously affirmed by the ECJ, 24 June 1981, case 150/80, Elefanten Schuh v. Jacqmain, in ECR, 1981, p. 1671 et seq., points 18 et seq., p. 1686 et seq., pointing to the fact that Article 22 does not extend the jurisdiction derived from other rules in the Convention. In fact, Article 22, par. 2 of the Convention (just as Article 28, par. 2, Brussels I Regulation) provides that jurisdiction may be declined in favour of the judge first seized only if this has jurisdiction in respect of the two actions.

32 ECJ, 4 February 1988, case 145/86, Hoffmann v. Krieg, in ECR, 1988, p. 645 et seq., esp. points 22 et seq., p. 668 et seq. See, concerning the latter decision, among others, DI BLASE A., ‘Convenzione di Bruxelles e rapporti tra sentenze incompatibili’, in: Riv. dir. int. priv. proc. 1989, p. 331 et seq.; GAUDEMET-TALLON H., Note in Rev. crit. dr. int. pr., 1988, p. 605 et seq.; SCHACK H., ‘Widersprechende Urteile: Vorbeugen ist besser als Heilen’, in: IPRax 1989, p. 139 et seq.; also MOISSINAC MASSÉNAT V. (note 1), p. 135 et seq.



recognition of judgments given in other Member States and is therefore to be inter-preted restrictively, the rule on related actions contained in Article 22 of the Convention – i. e., in Article 28 of the Regulation – tries to achieve an efficient coordination among proceedings pending in the Courts of different Member States, and a broad interpretation thereof is therefore necessary to ensure that purpose is achieved to the largest extent possible.33 2. The Procedural Modifications Introduced by the Regulation

Article 28 of the Regulation has introduced procedural improvements, while at the same time maintaining the definition of related actions previously contained in Article 22 of the Convention. Under the first modification, the requirement of concurrent actions pending at first instance, which the former provision contem-plated for the mere suspension of proceedings by the judge second seized, is now foreseen only in respect of the decision to decline jurisdiction under paragraph 2 of the rule. This modification substantially extends the applicability of the rule so far as the mere suspension of proceedings is concerned. At the same time, the said requirement is maintained with regard to the more delicate decision to decline jurisdiction. Such a decision might in fact have caused the plaintiff in the action subsequently introduced the loss of an instance of judgment, in case that action was still pending at first instance whereas the concurrent action before the judge first seized was already pending in appeal. The second modification concerns the addi-tional requirement posed by paragraph 2 of the rule regarding the decision of the judge subsequently seized to decline jurisdiction and the possibility to consolidate the actions in front of the judge first seized. Article 22, par. 2, of the Convention oddly required that consolidation of the actions had to be permitted according to the law of the judge second seized,34 an illogical requirement that has been recti-

33 See, with regard to the definition of related actions contained in Article 28 of

Brussels I Regulation, among others, CARBONE S. M. (note 11), p. 221 et seq.; GEIMER R., SCHÜTZE R. A. (note 11), p. 464 et seq.; KROPHOLLER J. (note 11), p. 362 et seq.; LEIBLE S. (note 11), p. 505 et seq.; SALERNO F. (note 11), p. 267 et seq.; SCHLOSSER P. (note 11), p. 190 et seq.; concerning the corresponding notion contained in Article 22, par. 3, Brussels Convention, OTTE K., Umfassende Streitentscheidung durch Beachtung von Sachzusammenhängen, Tübingen 1998, p. 383 et seq.; may we refer also, for a discussion of the interpretation of the said definition by the ECJ, to MARONGIU BUONAIUTI F. (note *), p. 365 et seq., esp. p. 374 et seq.; subsequently, ROMANO G. P. (note 11), p. 143 et seq.; D’ALESSANDRO E. (note 30), p. 133 et seq., esp. p. 141 et seq. See further infra, Part VI, sub C.2 et seq., concerning some particular problems posed by the application of the rules on related actions in intellectual property matters and the related proposals for amendment of the rules contained in the Regulation formulated by the European Commission.

34 The solution provided in this respect by Article 22 of the Brussels Convention had been criticized in legal literature: see among others, DI BLASE A. (note 20), p. 206 et seq.; GAUDEMET-TALLON H., Les conventions de Bruxelles et de Lugano, II ed., Paris 1996, p. 216 et seq.; MARI L. (note 30), p. 819 et seq.; TARZIA G., ‘Competenza internazionale e competenza giurisdizionale per connessione nelle convenzioni dell’Aja e di Bruxelles’, in:



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fied. Pursuant to Article 28, the actions can be consolidated if allowed by the law of the judge first seized, a solution which appears more correct considering that it is in front of the latter that consolidation of the concurrent actions has to take place.35

III. In Particular, the Requirements for the Application of the Rules on lis pendens: the Identity of the Cause of Action

The requirements for the application of the rules concerning lis alibi pendens in ‘Brussels I’ and formerly in the Brussels Convention have frequently proven diffi-cult to interpret due to the inherent difficulty of having them applied to two differ-ent sets of proceedings pending before courts of different Member States that fre-quently belong to distinct legal traditions. Probably the most significant problems of interpretation have concerned the requirement that the two claims present the same cause of action; this problem is caused by a broad variety of conceptions that can be met in the legal literature of the Member States on this issue. The ECJ was addressed with this question as early as 1987 in Gubisch Maschinenfabrik v. Palumbo.36 The Court began by observing that even though the said requirement was formulated in different terms in some of the linguistic versions of the Brussels Convention, as it is now in those of ‘Brussels I,’ a uniform meaning of the different terms adopted could be traced, In fact, the majority of linguistic versions distin-guished within the unitary English notion of ‘cause of action,’ as within the Ger-man notion of ‘Anspruch’, the two elements of the object of the action and of the title on which it is based. This distinction was therefore to be taken into account for the purposes of the autonomous interpretation of the Convention, as it is currently in respect of the Regulation.37 L’efficacia delle sentenze straniere nelle convenzioni multilaterali dell’Aja e della C.E.E., Padua 1969, p. 263 et seq., esp. p. 273 et seq.

35 See, with regard to the procedural modifications introduced by Article 28 of the Brussels I Regulation in respect of the mode of operation of the rule on related actions as contained in Article 22 of the Brussels Convention, among others, CARBONE S. M. (note 11), p. 222; GEIMER R., SCHÜTZE R. A. (note 11), p. 466 et seq.; KROPHOLLER J. (note 11), p. 364 et seq.; LEIBLE S. (note 11), p. 509; SALERNO F. (note 11), p. 269 et seq.; SCHLOSSER P. (note 11), p. 190; MARONGIU BUONAIUTI F. (note *), p. 469 et seq.; ROMANO G. P. (note 11), p. 146 et seq.; D’ALESSANDRO E. (note 30), p. 141 et seq.

36 ECJ, 8 December 1987, case 144/86, Gubisch Maschinenfabrik v. Palumbo, in: ECR, 1987, p. 4861 et seq.

37 See in this sense the reasoning of the Court, point 14, at p. 4875. Among the other linguistic versions of the Brussels Convention and of Regulation ‘Brussels I’, the French version bears: ‘le même objet et la même cause’, the Italian version: ‘il medesimo oggetto ed il medesimo titolo’; the Dutch version: ‘vorderingen (…), welke hetzelfde onderwerp



In determining the precise meaning of the two said elements of the action, the Court of justice stressed the need to pursue an autonomous and uniform inter-pretation, capable of transcending the peculiarities of domestic legal conceptions.38 In establishing such an interpretation, the Court referred to the essential aim of the rules on lis alibi pendens–at that time contained in the Brussels Convention–to prevent conflicting judgments, which would create an obstacle to the free circula-tion of judgments among the Member States. The latter constitutes, in fact, the main purpose of the Convention and now of the Regulation. Consequently, the autonomous interpretation of both notions of ‘object’ and ‘title’ of the two actions had to be conceived broadly, so as to ensure to the largest extent possible the attainment of that aim.39 Accordingly, the ‘object’ of the action is in principle betreffen en op dezelfde oorzaak berusten’; the same distinction appears in other versions successively drafted on the occasion of the accession of new Member States to the Brussels Convention, such as the Spanish version: ‘el mismo objeto y la misma causa’ and the Portu-guese version: ‘o mesmo pedido e a mesma causa de pedir’. The difference in the linguistic versions of the Convention, which has remained substantially unaltered in the Regulation, is inevitably evidence of the divergences among domestic legal conceptions in the Member States.

38 In this respect, the Court, point 7, at p. 4873, recalled itself to its previous decision of 6 October 1976, case 12/76, Industrie Tessili Italiana Como v. Dunlop A.G., in ECR, 1976, p. 1473 et seq., to underline that none of the two alternative solutions, given by an entirely autonomous interpretation and one which refers to the domestic conceptions of the specific Member States concerned, may be accepted as a general rule, since the more appro-priate solution in respect of the interpretation of expressions used in the Convention has to be assessed on a case by case basis according to the specific purpose of the relevant provi-sion. In the Tessili case, in fact, the Court held that the place of performance of the disputed obligation under Article 5.1 of the Convention had to be determined in accordance with the law applicable under the conflict of laws rules of the forum. See, in this respect, FRANZINA P., La giurisdizione in materia contrattuale. L’art. 5 n. 1 del regolamento n. 44/2001/CE nella prospettiva dell’armonia delle decisioni, Padua 2006, esp. p. 73 et seq.; p. 371 et seq. More generally, concerning the problems raised by the interpretation of expressions contained in Community instruments on private international law, among others, AUDIT M., ‘L’interprétation autonome du droit international privé communautaire’, in: Clunet 2004, p. 789 et seq.; BARATTA R., ‘The Process of Characterization in the EC Conflict of Laws: Suggesting a Flexible Approach’, in: this Yearbook 2004, p. 155 et seq.; BARIATTI S., ‘Qualificazione e interpretazione del diritto internazionale privato comunitario: prime riflessioni’, in: Riv. dir. int. priv. proc. 2006, p. 361 et seq.; BERTOLI P., Corte di giustizia, integrazione comunitaria e diritto internazionale privato e processuale, Milan 2005, esp. p. 422 et seq.; BONOMI A., ‘Il diritto internazionale privato dell’Unione europea: considerazioni generali’, in: Diritto internazionale privato e cooperazione giudiziaria in materia civile, ed. by A. Bonomi (note 11), p. 1 et seq., esp. p. 23 et seq.

39 The Court, points 8 et seq., at p. 4874, recalled the purposes contemplated by for-mer Article 220 of the EEC Treaty –then Article 293 of the EC Treaty – on the basis of which the Convention had been concluded, as underlined in particular in its earlier decision of 30 November 1976, case 42/76, de Wolf v. Cox B. V., in ECR, 1976, p. 1759 et seq., where the Court affirmed the relevance within the system of the Convention of the principle of res iudicata, stressing that it would be incompatible with the purpose of Articles 26 et seq. of the Convention, relating to the recognition of judgments handed down in the other



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identified with the substantial aim pursued by the plaintiff with his claim, rather than with the specific form of relief requested, which might vary according to the legal system concerned.40 ‘Title,’ instead, must be identified with the legal relation-ship giving rise to the action.41

A. The Relationship between Actions for Performance and Actions for a Negative Declaration

Gubisch Maschinenfabrik v. Palumbo presented, on the one hand, an action for performance of a sales contract, whereby the seller sought payment of the price from the buyer. On the other hand, it presented an action for a negative declaration, whereby the buyer sought a declaration holding either that the contract was null and void or that the seller had committed a fundamental breach of the contract, discharging the buyer from his obligations. The ECJ held that because the enforce-ability of the same contract was at the heart of the two actions, which were in fact aimed either at affirming or at denying enforceability of the contract, the actions were to be assumed as having the same object and the same title for the purposes of the Convention,42 even though pursuant to the domestic legal conceptions of the Contracting States, to admit a new action, identical both as to the parties and in respect of the object, to another one which has already been decided by a judge in another Contracting State.

40 It is to be noted that with respect of the object of the action Italian procedural law distinguishes the two elements of ‘oggetto immediato,’ given by the specific form of relief requested, that is, in the case at hand, the condemnation of the other party to payment of the price under the contract on the one side and a negative declaration on the other, and of ‘oggetto mediato,’ given by the aim which is pursued by the plaintiff by means of the relief requested, that is, respectively, the performance of the contract and the discharge from the obligations deriving from it. See, among others, FRANCHI G., La litispendenza, Padua 1963, p. 88, 92 et seq.; MANDRIOLI C., Corso di diritto processuale civile, XIX ed., Turin 2007, vol. I, p. 158 et seq., 278 et seq.; MARENGO R., La litispendenza internazionale, Turin 2000, p. 125 et seq.; RICCI G. F., ‘Litispendenza’, in: Digesto, IV ed., Disc. priv., Sez. civ., Vol. IX, Turin 1994, p. 64 et seq., esp. p. 71 et seq., 74 et seq.

41 In fact, as observed by the Court, point 15, at p. 4875, being the identity of the contractual relationship which formed the basis of the two actions beyond dispute, the really controversial aspect in the case in question was constituted by the identity of the object, which could appear questionable, in consideration of the opposite pretentions of the parties.

42 See in these terms the fundamental assumption by the Court, point 16 of its rea-sons for decision, at p. 4876. The Court went on, points 17-18, ibidem, affirming that in front of this decisive consideration of no relevance could be considered the lack of formal identity of the two actions, since, had the issue been decided otherwise, the way would have been left open to potentially contradictory judgments. In fact, the recognition of a judgment condemning one of the parties to performance of his obligations under the contract could have been barred in the Contracting State of domicile of the said party pursuant to Art. 27, par. 3 – currently, Art. 34, par. 3, Brussels I Regulation – by a previous judgment by the courts of the latter country having declared the invalidity or the non-enforceability of the same contract. The decision of the ECJ has formed the subject of extensive legal literature:



relevant Member States the identity of the object of the two actions could appar-ently not be affirmed.43 The Court further observed that the solution reached was justified because the object of the subsequent action for a negative declaration might well have been introduced as a defence to the previous action for the enforcement of the contract, since it did not extend the limits of the object of the dispute as set by the latter action.44

see, among others, BROGGI V., ‘Sui rapporti tra litispendenza e connessione, alla stregua della Convenzione giudiziaria di Bruxelles’, in: Giust. civ., 1988, I, p. 2166 et seq.; DI BLASE A. (note 20), p. 94 et seq.; GAUDEMET-TALLON H., Note in: Rev. crit. dr. int. pr., 1988, p. 374 et seq.; HUET A., ‘Chronique’, in: Clunet, 1988, p. 538 et seq.; MAURO J., Note in Gazette du Palais, 1988, Rec. des sommaires, p. 265 et seq.; LINKE H., ‘Anmerkung zu Gerichtshof der europäischen Gemeinschaften, Urt. v. 8. 12. 1987’, in: RIW, 1988, p. 822 et seq.; SCHACK H., Widersprechende Urteile: Vorbeugen ist besser als Heilen, in IPRax, 1989, p. 139 et seq.; for some more recent studies, MOISSINAC MASSÉNAT V. (note 1), p. 113 et seq.; MARONGIU BUONAIUTI F. (note *), p. 295 et seq.; ROMANO G. P. (note 11), p. 103 et seq., esp. p. 125 et seq.

43 Reflecting conceptions apparently derived from Italian law, Advocate General Mancini suggested in his conclusions concerning the case at hand, ibidem, p. 4867 et seq., esp. p. 4870, that the relationship between an action for performance and an action for a negative declaration in respect of the same legal relationship should be conceived in terms of ‘pregiudizialità,’ that is, of preliminary relevance with respect to the decision on the other action, rather than identity. This solution, however, is questionable, since for a relation of ‘pregiudizialità’ to properly arise, the preliminary question must pertain to a different legal relationship than that which forms the subject of the other action, which is not the case in the situation under consideration. See, for different propositions in respect of this issue, PROTO PISANI A., ‘Appunti sulla tutela di mero accertamento’, in: Riv. trim. dir. e proc. civ. 1979, p. 620 et seq., esp. p. 629 et seq.; MENCHINI S., I limiti oggettivi del giudicato civile, Milan 1987, p. 107 et seq.; ID., Il giudicato civile, Turin 1988, p. 59 et seq.; MERLIN E., ‘Azione di accertamento negativo di crediti ed oggetto del giudizio (casi e prospettive)’, in: Riv. dir. proc. 1997, p. 1064 et seq., esp. p. 1079 et seq.; ROMANO A. A., L’azione di accertamento negativo, Naples 2006, p. 265 et seq.; the point is specifically discussed with regard to the corresponding requirement for the application of the Italian rule on lis alibi pendens contained in Art. 7, par. 1, of Law No. 218/1995 in MARONGIU BUONAIUTI F. (note *), p. 336 et seq., to which we refer also for further references to Italian legal literature and case law.

44 This assumption, which figures in point 16, second paragraph, of the Court’s reasoning, reveals to a certain extent the influence of the German doctrine on Streitgegen-standsidentität, that is, on the identity of the object of the actions. The said doctrine tends to conceive the relationship between an action for performance and an action for a mere decla-ration regarding the same legal relationship in terms of a maiori ad minus. Accordingly, the object of the first action has to be considered as broader than that of the second, so that the latter could be introduced within the limits of the object of the contention as set by the for-mer. See in this sense, in German case law, among others, Landgericht Hamburg, 24 March 1976, in: Die deutsche Rechtsprechung auf dem Gebiete des internationalen Privatrechts (IPRspr.), 1976, Nr. 160, p. 456 et seq., esp. p. 459; Oberlandesgericht Köln, 4 April 1973, in: VersicherungsRecht 1973, p. 1065 et seq.; Oberlandesgericht Hamm, 25 September 1985, in: IPRax 1986, p. 233 et seq. For a different interpretation that is more in line with the conception proposed by Advocate General Mancini in the conclusions mentioned above



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The situation was in part different in the 1994 Tatry case.45 There, an action for a negative declaration was instituted in the Netherlands by the owners of a ship, wherein they tried to exclude their liability for damages to the ship’s cargo before the owners of the cargo sued them in England to recover their damages. Therefore, apart from other peculiarities of the case that are beyond the scope of this article46,

(note 43), in the sense that a Feststellungsklage (action for a mere declaration) presents preliminary relevance (Vorgreiflichkeit) in respect of a Leistungsklage (action for perform-ance), so that proceedings on the latter could be suspendend pending decision on the former pursuant to § 148 ZPO, see Oberlandesgericht Frankfurt a. M., 12 November 1985, in: IPRax, 1986, p. 297 et seq., noted LÖBER, B., ‘Forum shopping, Forum non conveniens oder schlicht: Justizgewährungsanspruch’, ibidem, p. 283 et seq. See, with regard to the applica-bility of the latter provision in similar cases, ROTH H., ‘Schranken der Aussetung nach § 148 ZPO und Art. 28 EuGVO’, in: Festschrift für Erik Jayme, Bd. I, München 2004, p. 747 et seq. The debate on the issue of Streitgegenstandsidentität has been particularly lively in the German legal doctrine, see, among others, HABSCHEID W. J., Der Streitgegenstand im Zivil-prozess, und im Streitverfahren der freiwilligen Gerichtsbarkeit, Bielefeld 1956, p. 268 et seq.; ID., ‘Die Neuere Entwicklung der Lehre vom Streitgegenstand im Zivilprozeß’, in: Festschrift für Karl Heinz Schwab, zum 70. Geburtstag, München 1990, p. 181 et seq.; LÜKE G., ‘Zur Streitgegenstandslehre Schwabs – eine zivilprozessuale Retrospektive’, ibidem, p. 309 et seq.; SCHWAB K. H., ‘Noch Einmal: Bemerkungen zum Streitgegenstand’, in: Ver-fahrensrecht am Ausgang des 20. Jahrunderts, Festschrift für Gerhard Lüke, zum 70. Geburtstag, München 1997, p. 793 et seq.; OTTE K. (note 33), p. 221 et seq.; RÜSSMANN H., ‘Die Streitgegenstandslehre und die Rechtsprechung des EuGH – nationales Recht unter Gemeineuropäischem Einfluß?’, in: Zeitschr. f. Zivilprozess 1998, p. 399 et seq.; WALKER W.-D., ‘Die Streitgegenstandslehre und die Rechtsprechung des EuGH – nationales Recht unter Gemein-europäischem Einfluß?’, ibidem, p. 429 et seq.; HEIDERHOFF B., ‘Diskussionsbericht zu Streitgegenstandslehre und EuGH’, ibidem, p. 455 et seq.; HABSCHEID E. J., ‘Rechtsverhältnis und Feststellungsinteresse, Zur Rechtsdogmatik und Rechtsvergleichung sowie zu aktuellen Fragen der allgemeinen Feststellungsklage’, ibidem, 1999, p. 37 et seq.; more recently, proposing a more flexible approach also in respect of the application of domestic rules, more in line with the solutions reached by the ECJ in respect of the Brussels Convention, GRUBER U. P., ‘Das Verhältnis der negativen Feststellungsklage zu den anderen Klagearten im deuschen Zivilprozeß – Plädoyer für eine Neubewertung’, in: Zeitschr. f. Zivilprozess 2004, p. 133 et seq.

45 ECJ, 6 December 1994, case C-406/02, Tatry (Owners of the cargo lately laden on board the ship) v. Maciej Rataj (Owners of the ship), in: ECR, 1994, p. I-5439 et seq.

46 Concerning, among others, the presence of a plurality of parties, not entirely corre-sponding in the concurrent sets of proceedings (see, in this respect, infra, Part IV, sub A), and the in rem character of the action introduced in London by the owners of the cargo against the shipowners, by means of arrest of a different ship owned by the same company. With regard to the latter issue, the Court held that since actions in rem appeared as a figure peculiar to common law jurisdictions and unfamiliar to the generality of the other contract-ing States, such an action was, for purposes of the Brussels Convention, equivalent to an ordinary action in personam brought against the owners of the ship. See point 46 et seq. of the Court’s decision, at p. I-5476 et seq. Such a solution had nonetheless been anticipated by English case law, in particular, The ‘Nordglimt’, in: Lloyd’s Law Reports, 1987, vol. 2, p. 470 et seq.; The ‘Linda’, in Lloyd’s Law Reports, 1988, vol. 1, p. 175 et seq.; The ‘Kherson’, in Lloyd’s Law Reports, 1992, vol. 2, p. 261 et seq. See, among others, BLACKBURN E., ‘Lis



Tatry’s facts are reversed from those in Gubisch; in Tatry the action for a negative declaration preceded that for performance, so that it could not be said that the object of the latter action could have been introduced as a defence in the first pro-ceedings. In fact, in accordance with the domestic legal conceptions of various Member States, the object of the latter action appeared broader than that of the former.47

Nonetheless, the Court still held that the same question lied at the heart of the two actions (the shipowners’ liability for damage to the cargo). And, in this respect, the Court held that no relevance was to be given to when the action for a negative declaration was filed. In fact, the Court believed that the subsequent claim for damages might well be considered dependent on a ruling finding the shipown-ers liable, as that was the main object of the action subsequently introduced by the owners of the cargo.48 Alibi Pendens and Forum Non Conveniens in Collision Actions after the Civil Jurisdiction and Judgments Act 1982’, in: Lloyd’s Mar. and Comm. Law Quarterly 1988, p. 91 et seq., esp. p. 93 et seq.; HARTLEY T. C., ‘The Effect of the 1968 Brussels Convention on Admi-ralty Actions in rem’, in: Law Quarterly Rev. 1989, p. 640 et seq.; MEESON N., Admiralty Jurisdiction Law and Practice, II ed., London 2000, p. 108 et seq., esp. p. 111 et seq.

47 The point had been stressed, in particular, by Advocate General Tesauro in his conclusions on the case at hand, ibidem, p. I-5442 et seq., points 17 et seq., at p. I-5450 et seq.. Advocate General Tesauro observed that since the object of the action for compensa-tion subsequently introduced by the owners of the cargo could not fall, as far as the request of condemnation of the shipowners to payment of the compensation is concerned, within the limits of the object of the action for a negative declaration previously introduced by the same shipowners – which was limited to the mere existence or non-existence of the latters’ liability for damage suffered by the cargo – the eventual decision by the judge second seized to decline his jurisdiction pursuant to the rule on lis alibi pendens contained in Article 21 of the Convention could have caused a denial of justice in respect of that part of the action. The Advocate general therefore proposed, point 18, at p. I-5451, to limit the application of the latter rule to that part of the action susbsequently introduced which was common to the two actions, proposing instead the application of the more flexible solution contemplated by Article 22 of the Convention – corresponding, with some procedural differences, to Article 28 Brussels I Regulation (supra, Part II, sub C.1)– in respect of the remaining part.

48 See in this sense the Court’s decision, points 43 et seq., at p. I-5475 et seq. The decision has given rise to extensive debate in the legal literature in different Member States: see, among others, CONSOLO C. (note 5), p. 26 et seq.; OTTE K. (note 33), p. 435 et seq.; BÄUMER A., Die ausländische Rechtshängigkeit und ihre Auswirkungen auf das internationale Zivilverfahrensrecht, Köln 1999, p. 148 et seq., esp. p. 154 et seq.; RÜSSMANN H., ‘Negative Feststellungsklage und Leistungsklage sowie der Zeitpunkt der endgültigen Rechtshängigkeit im Rahmen des EuGVÜ’, in: IPRax 1995, p. 76 ss., note to Oberlandesgericht Hamm, 3 December 1993, ibidem, p. 104 et seq.; ID., ‘Die Streitgegen-standslehre und die Rechtsprechung des EuGH – nationales Recht unter Gemeineu-ropäischem Einfluß?’, in: Zeitschr. f. Zivilprozess 1998, p. 399 et seq., esp. p. 404 et seq.; WALKER W. D., ‘Die Streitgegenstandslehre und die Rechtsprechung des EuGH – nationales Recht unter Gemeineuropäischem Einfluß?’, ibidem, p. 429 et seq., esp. p. 437 et seq.; HEIDERHOFF B., ‘Diskussionsbericht zu Streitgegenstandslehre und EuGH’, ibidem, 1998, p. 455 et seq.; MOISSINAC MASSÉNAT V. (note 1), p. 117 et seq.; MARONGIU BUONAIUTI F. (note *), p. 302 et seq. and, proposing an extension of such a solution also in respect of the



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1. The Risk of forum shopping Inherent in the Solution Adopted by the ECJ

The solution adopted by the ECJ has attracted much debate in the legal literature of various Member States. That debate has underlined the Court’s divergence from the traditional conceptions – especially in civil law countries – regarding the objective limits of res iudicata and the risk that it may open the way to improper attempts at forum shopping. It has in fact been observed that the solution adopted by the Court has encouraged the use of actions for a negative declaration, trigger-ing the rule on lis alibi pendens contained in the Brussels Convention and now in ‘Brussels I.’ Accordingly, such actions for a negative declaration may be used as a tactical instrument to prevent the introduction of an action for performance by the natural plaintiff, that is, in broad terms, the party claiming damages because of the other party’s conduct. As a result, anyone afraid of being sued for their actions may strike first by introducing an action for a negative declaration in a forum of his choice among those having jurisdiction, thereby depriving the substantial plaintiff of the right to choose the forum, which is, of course, one of the alternatives estab-lished by the Brussels Convention and the Regulation.49 2. The Considerations of Procedural Equality among the Parties

Some of the remarks raised by the Court of Justice’s solution can be countered. In particular, the ECJ has realized that, with regard to lis pendens, attributing rele-vance to actions for a negative declaration alongside actions for performance has re-established an equality between the litigants regarding choice of forum, which had been endangered by the creation of a system providing for a range of alterna-tive fora among which the plaintiff might choose to introduce his or her action. In fact, by filing an action for a negative declaration, the substantial defendant can

Italian rule on lis pendens abroad contained in Art. 7, Law No. 218/1995, ibidem, p. 339 et seq.; ROMANO G. P. (note 11), p. 128 et seq.

49 The risk of an exploitation of the rule on lis alibi pendens contained in the Convention and now in the Regulation as interpreted by the ECJ for purposes of forum shopping has been pointed out by numerous authors, in particular, MOISSINAC MASSÉNAT V. (note 1), p. 117 et seq.; for a consideration of the phenomenon in question as intrinsically related to the existence of a plurality of concurrent fora, rather than to the existence and mode of operation of the rules on lis alibi pendens, NIBOYET-HOEGY M. L. (note 1), p. 79 et seq., who proposes that the exploitation of the existing plurality of fora for purposes of forum shopping might be curtailed by means of rules providing for exclusive jurisdiction. The relevance of the substantial aspects of forum shopping, pertaining to the consequences which the choice among concurrent jurisdictions may have on the applicable law, due, in particular, to the absence within the Brussels system of any control of the law applied by the foreign judge at the recognition and enforcement stage, is underlined by VAREILLES-SOMMIÈRES P. DE (note 1), p. 56 et seq.; see also, in this respect, BELL A. S. (note 1), p. 38 et seq.; KROPHOLLER J. (note 1), p. 171 et seq.



make himself a plaintiff, thereby exercising the right to select the forum, which would otherwise have been reserved only for the plaintiff.50 3. The Solutions to Prevent Abuse: A Discretionary Evaluation of the

Circumstances of the Case

Nevertheless, the risk of an abuse of actions for a negative declaration as an instrument of forum shopping remains alive. The rigidity of the Regulation’s rules on lis alibi pendens prevents the judge second seized from performing a discretion-ary evaluation of the case’s circumstances in order to refuse to suspend proceed-ings in cases where the action previously introduced in another Member State for a negative declaration appears abusive.51 A discretionary evaluation of the like, which would be familiar to common law jurists as intrinsic to the doctrine of forum non conveniens,52 is totally unknown within the system of the Convention and now

50 This aspect is underlined by WAUTELET P., ‘Le droit au procès équitable et

l’égalité des armes: le cas de la litispendance dans les conventions de Bruxelles et de Lugano’, in: L’efficacité de la justice civile en Europe, sous la dir. de M.-T. Caupain et G. de Leval, Bruxelles, 2000, p. 101 et seq., esp. p. 115 et seq., following a reference to the issue contained in a decision of the German Bundesgerichtshof, 11 December 1996, in: Neue juristische Wochenschrift, 1997, p. 870 et seq., esp. p. 872. See in this respect also KROPHOLLER I. (note 1), p. 167 et seq.; ID. (note 11), p. 351 et seq.; SCHACK H., Internationales Zivilverfahrensrecht, IV ed., München 2006, p. 266 et seq., who stresses the relevance of actions for negative declarations in order to establish a Zuständigkeitsgleichge-wicht among the parties; see, also, for a discussion of the point, MARONGIU BUONAIUTI F. (note *), p. 314 et seq.; ROMANO G. P. (note 11), p. 128 et seq.

51 The introduction of a form of discretionary evaluation of the circumstances of the case in order to establish whether the action in front of the judge first seized purports to an abuse aimed at precluding adjuducation of the matter by a judge more closely connected to the case has been contemplated to temper the rigidity of the rules on lis alibi pendens contained in the Brussels Convention by LAGARDE P., Le principe de proximité en droit international privé contemporain, in Recueil des Cours, vol. 196 (1986-I), p. 9 et seq., esp. p. 154 et seq.; ID., ‘Perpetuatio fori et litispendance en matière internationale’, in: Mélanges dédiés à Dominique Holleaux, Paris 1990, p. 237 et seq., esp. p. 246 et seq. See, with reference to some examples where a discretionary evaluation of the like has been contemplated, such as Articles 8 and 9 of the 1996 Hague Convention on the protection of minors, in particular, GAUDEMET-TALLON H., Le pluralisme en droit international privé: richesses et faiblesses, in Recueil des Cours, t. 312, 2005, p. 9 et seq., esp. p. 361 et seq.; with reference to Belgian law, FALLON M., ‘L’appréciation, par le juge, de la compétence internationale en matière civile et commerciale’, in: Annales de droit de Louvain 1994, p. 373 et seq.

52 See, for some general references in respect of such a doctrine, with particular regard to its reception in English law, BEAUMONT P., ‘Great Britain (National Report)’, in: Declining Jurisdiction in Private International Law, ed. by Fawcett J. J., Oxford 1995, p. 207 et seq.; CHESHIRE G. C., NORTH P. M., FAWCETT J. J., Private International Law, XIV ed., London 2008, p. 426 et seq.; DICEY A. V., MORRIS J. H. C., COLLINS L., Conflict of Laws, XIV ed.., London 2006, p. 465 et seq.; with regard to its reception in the United



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of the Regulation. This point was clearly emphasized as early as the Schlosser Report on the Accession Convention of the U.K., Ireland and Denmark to the Brussels Convention.53

Both Convention and Regulation are in fact clearly inspired to the opposite principle of certainty and predictability as to the existence of jurisdiction, on the assumption that the plaintiff should not waste time and money looking around for a court vested of jurisdiction only for the judge seized to find himself or herself less appropriate than some other court for entertaining the case.54 The compulsory character of jurisdiction conferred by the Convention and now the Regulation on the courts of the Member States has recently been confirmed by the ECJ in its well known Owusu decision.55 There the Court stressed that jurisdiction based on the defendant’s domicile in a Member State may not be declined in favour of the courts of a third country on the basis of the doctrine of forum non conveniens. This decision prevents recourse to the doctrine not only in the relationships among Member States – where it would have inevitably overlapped with the mechanisms of coordination among concurrent proceedings, namely lis alibi pendens and related actions, provided for under the Convention and now the Regulation56 – but also in relationships involving third countries.57

States, MOISSINAC MASSÉNAT V. (note 1), p. 95, 194 et seq.; for a broader comparative study, NUYTS A., L’exception de forum non conveniens (Etude de droit international privé comparé), Bruxelles 2003, esp., with regard to the function of the doctrine in a perspective of coordination among jurisdictions, p. 871 et seq.

53 In OJ, C 59, 5 March 1979, p. 71 et seq., points 76 et seq., at p. 97 et seq. 54 See, with regard to the issue of compatibility of the doctrine of forum non conven-

iens with the Brussels system, among others, GAUDEMET-TALLON H., ‘Le «forum non conveniens», une menace pour la convention de Bruxelles?’, in: Rev. crit. dr. int. pr. 1991, p. 491 et seq.; ID., ‘Les régimes relatifs au refus d’exercer la compétence juridictionnelle en matière civile et commerciale: forum non conveniens, lis pendens’, in: Rev. int. de droit comparé 1994, p. 423 et seq.; HUBER P., Die englische Forum-non-conveniens-Doktrin und ihre Anwendung im Rahmen des Europäischen Gerichtsstands- und Vollstreckungsüberein-kommen, Berlin 1994, esp. p. 81 et seq.; ERWAND CH., Forum non conveniens und EuGVÜ, Frankfurt a. M. 1996, esp. p. 65 et seq.; PFEIFFER TH., Internationale Zuständigkeit und prozessuale Gerechtigkeit, Frankfurt a. M. 1995, p. 381 et seq.; BERTELE J., Souveränität und Verfahrensrecht, Tübingen 1998, p. 313 et seq.; CHALAS CH., L’exercice discrétion-naire de la compétence juridictionnelle en droit international privé, Aix-Marseille 2000, p. 38 et seq.; LUPOI M. A., Conflitti (note 5), p. 641 et seq.; may we refer also to MARONGIU BUONAIUTI F., ‘Forum non conveniens Facing the Prospective Hague Convention and EC Regulation on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters’, in: Riv. dir. eur. 1999, p. 3 et seq., esp. p. 17 et seq.; ID., ‘Forum non conveniens e art. 6 della convenzione europea dei diritti dell’uomo’, in: Riv. dir. int. 2001, p. 420 et seq., esp. p. 437 et seq.; ID. (note *), p. 9 et seq., esp. p. 471 et seq.

55 ECJ, 1st March 2005, case C-281/02, Owusu v. Jackson, in ECR, 2005, p. I-1383 et seq.

56 As acknowledged also by the English courts: see, in particular, High Court of Jus-tice, S. & W. Berisford Plc. v. New Hampshire Insurance Co., in Law Reports, Queen’s Bench Division, 1990, 2, p. 631 et seq.; Arkwright Mutual Insurance Co. v. Bryanston



4. An Alternative Solution: A Control on the Admissibility of Actions for a Negative Declaration

A different solution to the problem posed by the abusive use of negative declara-tion actions may be a careful control of the admissibility of those actions per-formed directly by the judge seized. In this respect, it is observed that the admissi-bility of actions, an issue which remains distinct from that of jurisdiction, is left to the Member States’ domestic rules of procedure, which neither the Brussels Convention nor the Regulation purport to unify. Clearly, as the ECJ has stressed in its decision in Hagen, with respect to issues left for the Member States to regulate with their own domestic rules, these rules remain subject to the effet utile principle, whereby the application of domestic, non-harmonized rules of the Member States may not impair the aims pursued by EC law.58 Nonetheless, such control does not Insurance Co. Ltd, ibidem, p. 649 et seq., where applicability of the doctrine was excluded altogether in respect of cases falling within the scope of application of the Brussels Conven-tion, and Court of Appeal, In re Harrods (Buenos Aires) Ltd., in Law Reports, Chancery Division, 1992, p. 72 et seq., where the doctrine was considered applicable in cases which, though falling within the scope of application of the Convention, presented a conflict with the jurisdiction of a third country.

57 This decision of the ECJ has attracted acute critical comments by the English doc-trine: see, among others, BRIGGS A., ‘The Death of Harrods: Forum non Conveniens and the European Court’, in: Law Quarterly Rev. 2005, p. 535 et seq.; ID., ‘Forum non conveniens and ideal Europeans’, in: Lloyd’s Mar. and Comm. Law Quarterly 2005, p. 378 et seq.; FENTIMAN R., ‘English Domicile and the Staying of Actions’, in: Cambridge Law Journal 2005, p. 303 et seq.; ID., ‘Civil Jurisdiction and Third States: Owusu and After’, in: Common Market Law Rev. 2006, p. 705 et seq.; HARRIS J., ‘Stays of Proceedings and the Brussels Convention’, in: I.C.L.Q. 2005, p. 933 et seq.; HARTLEY T. C. (note 26), p. 824 et seq.; PEEL E., ‘Forum non conveniens and European ideals’, in: Lloyd’s Mar. and Comm. Law Quar-terly 2005, p. 363 et seq.; RODGER B. J., ‘Forum non conveniens Post-Owusu’, in: Journal of Private Int. Law 2006, p. 71 et seq., esp. p. 79 et seq.; for some comments by continental-european authors, BALLARINO T., ‘I limiti territoriali della convenzione di Bruxelles secondo la sentenza Owusu’, in: Liber memorialis Petar Sarcevic. Universalism, Tradition and the Individual, München 2006, p. 3 et seq.; BANDERA M., ‘La sentenza Owusu, il «forum non conveniens» e i conflitti di giurisdizione tra Stati membri e Stati terzi’, in: Riv. dir. int. priv. proc. 2007, p. 1025 et seq.; CHALAS CH., Note in Rev. crit. dr. int. pr. 2005, p. 708 et seq.; CUNIBERTI G., ‘Forum non conveniens and the Brussels Convention’, in: I.C.L.Q. 2005, p. 973 et seq.; ID., WINKLER M., Note in Clunet, 2005, p. 1183 et seq.; ID., ‘Forum non conveniens e convenzione di Bruxelles: il caso Owusu dinanzi alla Corte di giustizia’, in Dir. del comm. int., 2006, p. 3 et seq., esp. p. 19 et seq.; HEINZE CH. A., DUTTA A., ‘Ungeschriebene Grenzen für europäische Zuständigkeiten bei Streitigkeiten mit Dritt-staatenbezug’, in: IPRax 2005, p. 224 et seq.; JAYME E., ‘Il diritto internazionale privato nel sistema comunitario e i suoi sviluppi normativi nei rapporti con stati terzi’, in Riv. dir. int. priv. proc. 2006, p. 353 et seq., esp. p. 357 et seq.; MOISSINAC MASSÉNAT V. (note 1), p. 120 et seq.

58 ECJ, 15 May 1990, case C-365/88, Kongress Agentur Hagen GmbH v. Zeehage BV, in ECR, 1990, p. I-1845 et seq., esp. points 20 et seq., at p. I-1866, where the Court made reference also to its previous decision of 15 November 1983, case 288/82, Duijnstee v. Goderbauer, in ECR, 1983, p. 3663 et seq., points 9 et seq., at p. 3674 et seq., to affirm that



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seem likely to cause any substantial interference with the effet utile of the Regula-tion, insofar as it does not go beyond an assessment of the existence of a real and genuine interest on the part of the plaintiff in obtaining a declaration on the non-existence of the rights claimed by his opponent.59 B. The Irrelevance of the Defendants’ Submissions for Determining the

Identity of a Cause of Action

Apart from this, which has long since appeared as the most troublesome aspect of the requirement that the identity of the causes of action be demonstrated, the ECJ has been seized with other questions concerning the said requirement, which deserve further discussion. First, in Gantner Electronic,60 the ECJ was asked to application of the domestic rules on admissibility of actions does not impair the effet utile of the Convention, insofar as it does not prejudice the correct and uniform application of its rules on jurisdiction. In particular, concerning an action against a third party on a guarantee pursuant to Article 6, par. 2, of the Convention, the application of domestic rules on admis-sibility would be incompatible with the effet utile if it caused the action to be declared inad-missible because the third party was domiciled in a different Contracting State, since this would have deprived the provision in question of its effects.

59 Such a solution has been proposed by CHALAS CH. (note 54), p. 494 ss., persua-sively arguing that it would be more in line with the general framework of the Convention – the same being true presently with the Brussels I Regulation – to leave it to the court first seized to exercise this form of control on the propriety of the plaintiff’s initiative to seize it, rather than letting the judge subsequently seized review the grounds on which the other judge has been seized. A somewhat similar solution has been proposed by the International Law Association in its Leuven-London Principles on Declining and Referring Jurisdiction in Civil and Commercial Matters, published in INTERNATIONAL LAW ASSOCIATION, Report of the Sixty-Ninth Conference, London, 2000, p. 137 et seq., which under Article 4.1 provide that the judge first seized, in order to decide whether to entertain the action, should first evaluate the existence of another judge that would be in a better position to adjudicate on the action pursuant to a series of criteria contemplated in the following Article 4.3. The option of having recourse to the rules on admissibility to curtail abusive procedural tactics by means of actions seeking negative declarations is further discussed, among others, by CUNIBERTI G., ‘Action déclaratoire et droit judiciaire européen’, in: Clunet, 2004, p. 77 et seq., esp. p. 79 et seq., 84 et seq.; CORNUT E., ‘Forum shopping et abus du choix de for en droit international privé’, ibidem, 2007, p. 27 et seq., esp. p. 47 et seq.; MOISSINAC MASSÉNAT V. (note 1), p. 118 et seq.; MARONGIU BUONAIUTI F. (note *), p. 311 ss.; ROMANO G. P. (note 11), p. 129. Among the requirements for the admissibility of an action for a negative declaration SCHLOSSER P. (note 11), p. 179 et seq., esp. p. 183 et seq., considers as decisive the possibility for the defendant to such an action to introduce a counterclaim for the enforcement of the disputed obligation, so as to prevent the relevant limitation periods from expiring. The importance of such a requirement to safeguard the rights of the defendant to an action for a negative declaration has been stressed already by WOLF CH., ‘Rechtshängigkeit und Verfahrenskonnexität nach EuGVÜ’, in: Eur. Zeitschrift für Wirtschaftsrecht 1995, p. 365 et seq., esp. p. 366.

60 ECJ, 8 May 2003, case C-111/01, Gantner Electronic GmbH v. Basch Exploitatie Maatschappij BV, in: ECR 2003, p. I-4207 et seq.



decide whether the identity of the causes of action must be determined with regard to only the object of the originating claims introduced by the plaintiffs in the two concurrent actions, or whether the content of the defences submitted by the respec-tive defendants must also be considered. In the circumstances of the case, the iden-tity of the causes of action would have resulted from a comparison between the plaintiff’s claim in the first action and the defence of set off, which the same party had presented in the parallel set of proceedings where it appeared as a defendant.61

The Court pointed to the regular reference to the term ‘action’ in the rules on lis alibi pendens contained in Article 21 of the Brussels Convention – and cur-rently in Article 27 of the Regulation – and considered also the provision contained in Article 30 of the Regulation, even though not applicable for temporal reasons to the case at hand. The latter provision makes reference, for the purposes of deter-mining the moment when proceedings are commenced, to the moment when the document instituting the proceedings is lodged with the court or when it is received by the authority competent for service. From this, the Court drew further elements for concluding that the identity of the causes of action is to be determined from the plaintiffs’ claims in the two proceedings.62

The solution adopted by the Court appears correct from a strictly procedural point of view. Indeed, it is correct only insofar as the defendant’s request for set off is submitted by way of defence, that is, without extending the action’s object any further than was set by the plaintiff’s claim. A different solution ought to have been reached in those cases where the defendant’s request is presented in the form of a counterclaim. In such a case, the defendant’s counterclaim is likely to be considered as an autonomous action, which can give rise to a situation of lis alibi pendens in relation to the originating claim of the plaintiff in the concurrent set of proceedings.63

61 See the questions posed to the Court of justice by the Austrian Supreme Court:

Oberster Gerichtshof, 22 February 2001, in: IPRax, 2002, p. 408 et seq., noted OBER-HAMMER P., ‘Internationale Rechtshängigkeit, Aufrechnung und objektive Rechtskraftgren-zen in Europa’, p. 424 et seq.

62 See the decision of the ECJ, points 24 et seq., at p. I-4235 et seq.; concerning the decision, among others, PATAUT E., Note in Rev. crit. dr. int. pr. 2003, p. 551 et seq.; REISCHL K., ‘Verfahrenskonzentration durch Aufrechnungseinrede im europäischen Zivil-prozess’, in: IPRax 2003, p. 426 et seq.; HUET A., ‘Chronique’, in: Clunet 2004, p. 638 et seq.; MERLIN E., ‘Art. 21 conv. Bruxelles e compensazione: una battuta d’arresto nella nozione comunitaria di litispendenza’, in: Int’l Lis 2003/04, n. 1, p. 16 et seq.

63 The autonomy of a counterclaim from the plaintiff’s claim, consisting in that, differently from a mere defence, it is aimed at obtaining a separate judgment against the other party, has been stressed by the ECJ in its decision of 13 July 1995, case C-341/93, Danvaern Production v. Schuhfabriken Otterbeck, in ECR, 1995, p. I-2053 ss., points 12 et seq., at p. I-2075 et seq., concerning the interpretation of Article 6, par. 3 of the Brussels Convention. The relevance for the same purposes of the distinction between the two differ-ent means through which a request for set off may be advanced by the defendant has been underlined by Advocate General Léger in his conclusions on the latter case, ibidem, p. 2055 et seq., points 17 et seq., at p. 2059 et seq., with reference also to the conclusions by Advo-cate General Capotorti concerning the case of Meeth v. Glacetal – decided by the ECJ on 9



540

Apart from these procedural aspects overlooked by the Court in its text based ruling, the solution reached raises more considerable doubts concerning its substantial effects. In fact, the Court, suddenly adopting a rather restrictive attitude with respect to the application of the rules on lis pendens contained in the Brussels Convention and departing from the previous more flexible attitude demonstrated in Gubisch and Tatry, reaches the undesirable result of allowing two concurrent actions to follow their course, notwithstanding the fact that the same issue forms the subject of both actions, be it as a consequence of the respective plaintiffs’ claims or of the defendants’ defences. Inevitably, such a solution is difficult to reconcile with the aim of preventing contradictory decisions by judges of different Member States, which, as the Court clearly stressed in previous decisions, is spe-cifically pursued by the rules on lis alibi pendens contained in the Convention and, currently, in the Regulation.64

C. The Identity of Cause of Action in Relation to Actions for Limitation of Liability

In the later Maersk case,65 the ECJ addressed the identity of the causes of action in relation to an action for limitation of a vessel owner’s liability pursuant to the rules contained in the relevant Convention concluded in Brussels in 195766 and a concur-rent action by a company owning a submarine pipeline that was seeking compen-sation for damages allegedly caused by the vessel. The Court stressed the peculi-arities of the first action, which consisted of the vessel owners’ unilateral applica-tion for limitation of their liability deriving from a specific event, which, once granted by the court pursuant to the rules contained in the relevant Convention, is valid against any claimant seeking compensation for damages suffered in the same event. Therefore, no identity could be established with an ordinary action for non-contractual liability, both as regards the object of the two actions and as concerns

November 1978, case 23/78, in ECR, 1978, p. 2133 et seq. – ibidem, p. 2144 et seq., point 3, at p. 2146 et seq., concerning the extension to the defendant’s defence of set off of the juris-diction deriving from a choice of forum agreement pursuant to Article 17 of the Convention. See also in this respect HUET A. (note 62), p. 640 et seq.

64 The risk of contradictory decisions ensuing from the solution adopted by the ECJ is underlined by REISCHL K. (note 62), esp. p. 430 and by PATAUT E. (note 62), esp. p. 553, who nonetheless considers that the Court in this decision has more likely created a further rule concerning the regime of lis pendens within the Brussels system rather than touching upon the question of the object of the actions that had formed the subject of its previous decisions in Gubisch and Tatry.

65 ECJ, 14 October 2004, case C-39/02, Maersk Olie & Gas A/S v. Firma M. de Haan en W. de Boer, in: ECR, 2004, p. I-9657 ss.

66 Convention of 10 October 1957 concerning the limitation of liability of the owners of sea-going vessels, on which see SAUVEPLANNE J. G., ‘La limitation de la responsabilité des propriétaires de bateaux’, in: L’Unification du droit, Annuaire, 1958, Rome 1959, p. 62 et seq.



their legal foundation. In reaching this conclusion, the Court relied in particular on the provision of Article 7 of the said 1957 Brussels Convention, which clarifies that the application for limitation of liability does not imply an admission of liabil-ity on the part of the owners of the vessel.67

If this appears a persuasive argument for denying an identity between the respective objects of the two actions, the decision needs to be considered more carefully regarding its refusal to find an identity of the causes of action on account of the difference between the rules of law on which the two actions were based.68 In this respect, it warrants clarifying that when concurrent proceedings are pending before courts of different countries, a difference in the rules to be applied by the relevant judges may in principle not cause a denial of the identity of the causes of action. In fact, due to the differences among private international law rules and to possible divergences in the interpretation of those rules when they are unified – as they are among Member States in relation to contractual and non-contractual obli-gations69 – it is a fairly common occurrence that two different laws may be applied

67 See, in particular, points 35 et seq. of the Court’s decision, at p. I-9698 et seq. The

Court further observed, point 36, that no relevance could be attributed to the fact that the owners of the damaged pipeline had appeared in the proceedings for limitation of liability introduced by the owners of the vessel contesting the amount of the limitation granted, since, pursuant to its previous decision in Gantner Electronic, point 26, no relevance could be attributed to the defences raised by the defendant for the purposes of establishing the identity of cause of action. See, with regard to the solution reached by the Court of justice, SMEELE F., ‘Recognition of foreign limitation proceedings under the European Jurisdiction and Judgments Convention’, in: IPRax, 2006, p. 229 et seq., esp. p. 231 et seq.

68 See point 38 of the Court’s decision, at p. I-9699. 69 Notably by means of EC Regulation No. 864/2007 of 11 July 2007 on the law

applicable to non-contractual obligations (s.c. «Rome II»), in OJ, L 199, 31 July 2007, p. 40 et seq., and EC Regulation No. 593/2008 of 17 June 2008 on the law applicable to contrac-tual obligations (s.c. «Rome I»), in OJ, L 177, 4 July 2008, p. 6 et seq., which has reformu-lated, with some significant amendments, the rules on the law applicable to contractual obligations previously contained in the Rome Convention of 1980 in an EC instrument. See, generally, among others, concerning the former, KREUZER K., ‘La comunitarizzazione del diritto internazionale privato in materia di obbligazioni extracontrattuali («Roma II»)’, in: Diritto internazionale privato e diritto comunitario, ed. by P. Picone, Padua 2004, p. 421 et seq., esp. p. 426 et seq.; BARIATTI S., ‘The Future Community Rules in the Framework of the Communitarization of Private International Law’, in: The Unification of Choice of Law Rules on Torts and Other Non-Contractual Obligations in Europe, ed. by A. Malatesta, Padua 2006, p. 5 et seq., esp. p. 15 et seq.; HOHLOCH G., ‘Place of Injury, Habitual Resi-dence, Closer Connections and Substantive Scope – the Basic Principles’, in: this Yearbook, 2007, p. 1 et seq.; VON HEIN J., ‘Of Older Siblings and Distant Cousins: The Contribution of the Rome II Regulation to the Communitarisation of Private International Law’, in: RabelsZ 2009, p. 461 et seq.; concerning the latter, BONOMI A., ‘The Rome I Regulation on the Law Applicable to Contractual Obligations – Some General Remarks’, in: this Yearbook 2008, p. 165 et seq.; SALERNO F., ‘Note introduttive’, I, in: Regolamento CE n. 593/2008 del Parla-mento europeo e del Consiglio del 17 giugno 2008 sulla legge applicabile alle obbligazioni contrattuali («Roma I»), Commentario, ed. by F. Salerno, P. Franzina, in Nuove leggi civ. comm., 2009, p. 521 et seq.; concerning the consequences of the reformulation of the rules



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by two judges in deciding an identical case.70 This of course might not result in a denial of the identity of the causes of action, based on the diversity of the actions’ legal foundation. In fact, identity is to be denied only in those cases where, as in the case at hand, the difference is not limited to the material content of the rules applied71 but, instead, concerns their structure, being the one action founded on the ordinary rules on non-contractual liability and the other on a specific regime pro-viding only for its limitation.

IV. Some Problems Concerning Identity of the Parties

The requirement of the identity of the parties has less frequently given rise to questions of interpretation submitted to the ECJ. A. Party Identity in Multi-Party Proceedings

The interpretation of the said requirement was first discussed in the Tatry case, where the Court was faced with a multiplicity of proceedings wherein the parties only partially coincided. With regard to such a situation, the Court clearly stressed that the rules on lis alibi pendens contained in the Brussels Convention – as pres-ently in the ‘Brussels I’ Regulation – apply only to the parties that are common to the two sets of proceedings under consideration, with the action subsequently

contained in the Rome Convention into a Regulation, with regard to the Italian system of private international law – which, under Article 57 of Law No. 218/1995, referred to the Convention in order to determine the law applicable also to contractual obligations not falling within the scope of application of the latter – MARONGIU BUONAIUTI F., ‘Note intro-duttive’, II, ibidem, p. 534 et seq.; on the relationship between the Rome I Regulation and the Rome Convention, FRANZINA P., ‘Commento all’art. 24’, ibidem, p. 931 et seq.

70 As already observed above (Part I, note 1 and this Part, sub A.1, note 49), the differences in respect of the law applicable by judges belonging to different countries is one of the main elements taken into account by the parties and their counsels in choosing among different alternative fora (that is, in ‘forum shopping’), particularly due to the fact that, at least under the EC rules as contained formerly in the Brussels Convention and currently in the Brussels I Regulation, such differences do not constitute an obstacle to the recognition and enforcement of judgments. See in this respect, in particular, VAREILLES-SOMMIÈRES P. DE (note 1), p. 56 et seq.

71 The point appears to be caught in its correct terms by the English High Court of Justice (Commercial Court), 5 April 2005, JP Morgan Europe Ltd. v. Primacom AG, [2005] EWHC 508 (Comm), in Lloyd’s Law Reports, 2005, vol. 2, p. 665 et seq, esp. point 45, where the Commercial Court judge correctly held that in order to establish whether the legal foundations of the two actions are identical for the purposes of Article 27 Brussels I Regu-lation regard is to be had to the respective rights and obligations of the parties, ‘however those were classified and determined by the national courts of each country’.



introduced having to follow its course regarding the other parties that do not appear in the concurrent proceedings.72 B. Cases of Procedural Substitution: Subrogation of the Insurer to the

Rights of the Insured

The question posed to the ECJ in the subsequent Druot assurances case was more complex,73 concerning the influence of a subrogation on the identity of the parties of the two sets of proceedings. There, the insurers of a ship appeared in one action in the place of the shipowner and the captain, who were parties to the other action. In such a situation, which happens often in those countries where the insurer who has indemnified the insured can sue in the insured’s place, the Court held that no identity can be found between the parties of the two sets of proceedings unless it is proved that the insurer in the one action and the insured in the other were acting in the pursuit of the same indivisible legal interests, so that the judgment to be pro-nounced in respect of the former would be res iudicata on the latter.74 The solution adopted by the ECJ, which appears persuasive, shows how the requirement of a subjective identity of the two sets of proceedings also ultimately rests on the iden-

72 ECJ, 6 December 1994, case C-406/02, Tatry (Owners of the cargo lately laden on

board the ship) v. Maciej Rataj (Owners of the ship) (note 45) (supra, Part III, sub A, note 45), point 34, at p. I-5474. The Court added, par. 35, that in the said case proceedings in respect of the other parties could be stayed under Article 22 of the Convention – currently Article 28 Brussels I Regulation – provided the relevant requirements are met, that is, the existence of such a connection among the actions as to render it expedient to have them treated jointly in order to prevent the risk of irreconcilable judgments (supra, Part II, sub C.1). See in respect of this point addressed in the Tatry decision, among others, QUIÑONES ESCÁMEZ A. (note 30), p. 60 et seq.; ASPRELLA C., ‘I presupposti della litispendenza internazionale: rapporti tra l’art. 21 della convenzione di Bruxelles e l’art. 7 della legge italiana di riforma del diritto internazionale privato’, in: Giust. civ. 1999, I, p. 6 et seq., esp. p. 9; PERSANO F., ‘Il rilievo della litispendenza internazionale nella convenzione di Bruxelles del 1968: la nozione di «stesse parti»’, in: Riv. dir. int. priv. proc. 2000, p. 713 et seq., esp. p. 721.

73 ECJ, 19 May 1998, case C-351/96, Druot assurances S.A. v. Consolidated Metallurgical Industries, in: ECR, 1998, I, p. 3075 et seq.

74 See the decision of the Court, points 18 et seq., at p. I-3097 et seq. The Court went on addressing the circumstances of the case, affirming that such an identity of the legal interests is probably to be affirmed in those cases where the insurer sues on behalf of the insured, without the latter being able to influence the course of the proceedings. To the contrary, the required identity appears not met when, as in the case at hand, the insurer is merely interested in recovering the cost of a salvage operation and not in ascertaining whether the captain of the ship, who is a party to the concurrent proceedings, is liable for the shipwreck. In a case like the latter, extending the application of the rules on lis alibi pendens would produce the undesirable result of depriving one of the parties of the right of autono-mously invoking his own divergent legal interests.



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tity of the substance of the two actions, or more specifically the identity of the legal interests pursued by the parties.75 C. Other Cases of Procedural Substitution

A similar rule should in principle be used to solve other cases where the identity of the parties is doubtful due to some other form of substitution in the exercise of the rights in question or to other particular circumstances, such as where the same right may be invoked by or against different subjects possessing an identical title and with effect for the entire category of subjects who may be equally so legitimated.76 The first hypothesis may occur in an assignment of credit, where the assignor is a party to the action previously introduced and the assignee appears as a party to the action subsequently commenced. In such a situation, as persuasively affirmed in the German case law, identity of the parties is to be found when the legal position of the assignor in the former action and that of the assignee in the latter appear identical with respect to the exercise of the disputed rights.77

75 See, among others, concerning the decision of the Court, HENSSLER, M., DEDEK,

H., ‘Parteidentität, Rechtshängigkeit/«Druot assurances SA/Consolidated metallurgical industries, Protea assurance»’, in: Entscheidungen zum Wirtschaftsrecht 1998, p. 499 et seq.; HUET A., ‘Chronique’, in: Clunet, 1999, p. 608 et seq., esp. p. 612 et seq.; DROZ G. A. L., ‘Note’ in: Rev. crit. dr. int. pr. 2000, p. 63 et seq., esp. p. 65 et seq.; MARI L. (note 30), p. 794 et seq.; ASPRELLA C. (note 72), p. 713 et seq.; SEATZU F., ‘The meaning of «same par-ties» in Article 21 of the Brussels Jurisdiction and Judgments Convention’, in: Eur. Law Rev., 1999, p. 540 et seq.

76 A particularly interesting case in this respect has been decided by Tribunale di Torino, 27 March 2007, Rete Ferroviaria Italiana S.p.A. v. Gefco SA, in Riv. dir. int. priv. proc., 2008, p. 194 et seq., where two parallel actions had been brought in France and in Italy in relation to an accident survened in the performance of a contract for the international carriage of goods by rail, under the COTIF Convention of 1980. In this case, identity of the parties was affirmed even though the Italian railway company was a party to the one set of proceedings and the French railway company to the other, since under Article 55, par. 3, of the uniform rules attached to the said Convention such an action may be brought either against the railway company of departure or against that of destination, or against that on whose railways the accident survened. The Italian court considered that because par. 4 of the said rule provides that the plaintiff waives his right of choice once he has sued one of the said railway companies, the action against the one is to be considered as having the same effects as that against any of the others contemplated by the rule.

77 See in this sense, persuasively, Oberlandesgericht Köln, 8 September 2003, in IPRax, 2004, p. 521 et seq., esp. p. 524, noted GEIMER R., ‘«Windhunde» und «Torpedos» unterwegs in Europa – ist Art. 27 EuGVVO bzw. Art. 21 EuGVÜ/LugÜ anwendbar trotz Parteiverschiedenheit?’, ibidem, p. 505 et seq.



D. Actions for the Annulment of Decisions of Company Organs

The second situation, which presents an inevitable degree of complexity, appears frequently in company law matters, particularly in actions for the annulment of decisions adopted by company organs. Such actions, in fact, may be brought by any stakeholder in the company, and the ensuing judgment, particularly when the decision is annulled, produces its effects on the company itself and, thereby, on all stakeholders, as well as on the administrators and other company organs. There-fore, when a plurality of actions brought by different stakeholders concerning the validity of the same decision of a given company’s organ, identity of the parties should in principle be affirmed, so as to prevent the risk of contradictory decisions on the validity of the same decision by courts of different Contracting States.78 Due account is to be taken, nonetheless, that the said risk is reduced due to the presence of an exclusive head of jurisdiction in respect of the issues at hand under Article 22.2 of the Regulation. E. The Solution Retained in Regulation No. 2201/2003 in Respect of

Actions on Parental Responsibility

A somewhat similar situation arises with regard to concurrent proceedings on the exercise of parental responsibility under Regulation No. 2201/2003 (‘Brussels II-bis’).79 Not incorrectly, Article 19 of that regulation distinguishes for the purposes of lis pendens between concurrent proceedings concerning personal separation, divorce or annulment of the marriage, which are dealt with in par. 1, where identity of the parties – i. e. the spouses – is required,80 and actions concerning parental

78 The proposed solution appears dictated by the consideration that an action for the

annulment of a deliberation of a company organ is directed against the company as such, and the judgment annulling the decision produces effect on the latter’s juridical sphere, as an entity having a distinct legal personality from that of its stakeholders, who will be only indirectly affected by the decision. See, in this respect, MONTELEONE G. A., I limiti soggettivi del giudicato civile, Padua 1978, p. 141 et seq. Other authors have proposed to consider this as a problem of ‘effetti riflessi’, i. e. of indirect effects, of res iudicata: in par-ticular, ZANARONE G., ‘L’invalidità delle deliberazioni assembleari’, in: Trattato delle società per azioni, ed. by G. E. Colombo, G. B. Portale, Vol. III, Part II, Turin 1993, p. 350 et seq., esp. p. 353, with reference to an opinion defended by PROTO PISANI A., Opposizione di terzo ordinaria, Naples 1965, p. 167 et seq., esp. p. 173 et seq.

79 See, for some general references, supra, Part II, note 14. 80 The rule contained in Article 19, par. 1, of Regulation No. 2201/2003 (‘Brussels

II-bis’) substantially replicates that under Article 11, par. 2, of Regulation No. 1347/2000 (‘Brussels II’), which, treating as identical actions which are different, as indeed are those for divorce, legal separation and marriage annulment, has been characterized in the Borrás Report on the corresponding Brussels II Convention, in OJ, C 221, 16 July 1998, p. 27 et seq., point 54, at p. 46, as providing for a case of ‘false lis pendens.’ See in this respect, among others, ANCEL B., MUIR WATT H. (note 14), p. 430 et seq.; BONOMI A. (note 14), p.



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responsibility, which are dealt with in par. 2. In respect of the latter, identity of the parties is not required, because as concerns the subjective sphere it is only relevant that both proceedings concern the same minor. Also in the context of parental responsibility, in fact, relevance is given to the identity of the person on whose subjective sphere the measures requested to the judge are deemed to have effect, and not to that of the applicants, who are likely to be only indirectly affected by the measures to be adopted.81 V. The Rule Contained in the Regulation Concerning

the Determination of Temporal Priority

Some further comments may be devoted to the rules concerning temporal priority between actions, as contained in Article 30 of ‘Brussels I’ and, in the same terms, in Article 16 of ‘Brussels II-bis.’ When the rules in question first appeared in Arti-cle 11, par. 4, of the then repealed Regulation No. 1347/2000 (‘Brussels II’) and shortly thereafter in Brussels I, they were welcomed in the legal literature as a new, uniform regulation of the moment when a court in a Member State is deemed seized for the purposes of the application of the rules on lis alibi pendens,82 filling a lacuna that had deliberately been left open by the Brussels Convention of 1968.83

335 et seq.; DAVÌ A. (note 14), p. 881; GAUDEMET-TALLON H. (note 14), p. 400 et seq.; GRUBER U. P. (note 14), p. 1131 et seq.

81 The solution adopted in Article 19, par. 2, of the Brussels II-bis Regulation appears dictated by the priority of the interest of the minor, the protection of which consti-tutes, as indicated in its preamble, points 12-13, the aim pursued by the rules on jurisdiction in respect of actions in matters of parental responsibility contained in the Regulation. See, on the rule in question, among others, BARATTA R. ‘Il regolamento comunitario’ (note 13), p. 179 et seq.; ID., Scioglimento ed invalidità (note 13), p. 177 et seq.; BIAGIONI G. (note 13), p. 1021 et seq.; DI LIETO A. (note 13), p. 128 et seq.; MCELEAVY P., The Communitarization of Divorce Rules (note 13), p. 623 et seq.; DILGER J. (note 13), p. 235 et seq.; SPELLENBERG U. (note 13), p. 186 et seq.; ESPINOSA CALABUIG R. (note 13), p. 60 et seq.

82 See, among others, concerning the solution contemplated by Article 30 of the Brussels I Regulation, CARBONE S. M. (note 11), p. 212 et seq.; DAVÌ A. (note 14), p. 895 et seq.; GAUDEMET-TALLON H. (note 11), p. 268 et seq.; GEIMER R., SCHÜTZE R. A. (note 11), p. 470 et seq.; KROPHOLLER J. (note 11), p. 367 et seq.; LEIBLE S. (note 11), p. 511 et seq.; LUPOI M. A., ‘La «nuova» litispendenza comunitaria: aspetti procedurali’, in: Riv. trim. dir. e proc. civ. 2004, p. 1285 et seq.; SALERNO F. (note 11), p. 274 et seq.; SCHLOSSER P. (note 11), p. 194 et seq.; with regard to the corresponding rule under Article 16, Brussels II-bis Regulation, RAUSCHER TH., ‘Brüssel IIa Verordnung’, in: Europäisches Zivilprozessrecht, ed. by Th. Rauscher (note 11), p. 942 et seq.

83 As documented by the Jenard Report on the Brussels Convention, in OJ, C 59, 5 March 1979, p. 1 et seq., at p. 41 and further underlined in the subsequent Schlosser Report on the 1978 Accession Convention, ibidem, p. 71 et seq., at p. 97, the drafting committee



The absence of a specific rule in this respect within Article 21 of the Convention was remedied by the ECJ in the well-known Zelger decision, which, adopting a neutral solution, left the matter to be decided according to the domestic procedural rules of each judge seized.84 A. The Twofold Solution Contemplated by Article 30 Brussels I

Regulation

In reality, the solution first introduced in ‘Brussels II’ and in turn mutuated by ‘Brussels I’ and ‘Brussels II-bis,’ wherein two alternative rules reflecting the dif-ferent modes of introducing proceedings in the various Member States are included, cannot be considered entirely uniform and autonomous from the different national rules. In fact, the solution adopted leaves untouched the co-existence of two main modalities in which the introductory phase of the proceedings may be articulated: (1) that in which the document introducing proceedings is first lodged with the court – or, as it is England, issued by the court – and then served on the defendant, and (2) that – mostly used in continental-European countries – where the said document must be served on the defendant first and then lodged with the court. The only significant contribution the Regulation’s solution offers consists of providing that, whichever of the two modalities applies depending on the proce-dural rules of the judge seized, the relevant moment for establishing when the judge is considered seized is upon the first act performed by the plaintiff.85

considered it inappropriate to specify in the Convention the moment when proceedings are to be considered as pending and therefore preferred to leave the matter to be regulated according to the relevant domestic procedural laws.

84 ECJ, 7 June 1984, case 129/83, Zelger v. Salinitri, in ECR, 1984, p. 2397 et seq. This decision, the first handed down by the Court with regard to the rules on lis pendens in the Brussels Convention, has been widely commented: see, among others, AUDIT B., Note in: Rec. Dalloz Sirey, 1985, Inf. rapides – Somm. comm., p. 177; BALLARINO T., ‘La prima sentenza della Corte di Lussemburgo sulla litispendenza’, in: Foro padano, 1985, I, p. 146 et seq.; HOLLEAUX D., Note in: Rev. crit. dr. int. pr., 1985, p. 378 et seq.; HARTLEY T. C., ‘Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, When Is a Court Seized of a Case?’, in: Eur. Law Rev. 1985, p. 56 et seq.; HUET A., ‘Chronique’, in Clunet, 1985, p. 165 et seq.; LINKE H., ‘Begriff der Rechtshängigkeit nach dem EuGÜbk’, in: RIW, 1984, p. 737 et seq.; RAUSCHER TH., ‘Rechtshängigkeit nach dem EuGVÜ’, in: IPRax, 1985, p. 317 et seq.; SCARPA R., ‘Diritto processuale interno e conven-zione di Bruxelles. Instaurazione della litispendenza’, in: Giust. civ. 1985, I, p. 5 et seq.; VERHEUL H., ‘The EEC Convention on Jurisdiction and Judgments of 27 September 1968 in Dutch Legal Practice, 6. Article 21. Lis Pendens’, in: Netherlands Int. Law Rev. 1987, p. 107 et seq.

85 A consequence of the rule in question is that when the relevant moment, under Article 30, par. 1 Brussels I Regulation, is the lodging of the document instituting proceed-ings with the court, subsequent formal shortcomings affecting service are irrelevant for the present purposes, provided the plaintiff has taken all necessary steps to cure them: see in this sense, in the Italian case law, Tribunale di Milano, 8 June 2004, in: Riv. dir. int. priv. proc.,



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In this respect, the new rules depart somewhat from the solution adopted by the ECJ in Zelger, which took into account the moment when an action could be considered as definitively pending in front of the judge seized.86 It is in fact clear that at the moment when just one of the two acts necessary to introduce an action is performed proceedings cannot be considered definitively pending. The new rules contained in the Brussels I Regulation, as in the other aforementioned regulations, seem to take account of this fact. Accordingly, they subject the relevance of the date of the first act for lis pendens purposes to the accomplishment by the plaintiff of all the subsequent procedural steps which are necessary to ensure that proceed-ings become definitively pending in front of the judge seized.87

B. The Relationship with the Rules Contained in EC Regulation No. 1393/2007 on Service

Additional interesting questions arise from the latter rules as concerns their rela-tionships with the EC rules on the service of judicial and extra-judicial documents in civil or commercial matters as currently contained in Regulation No. 1393/2007,88 which has replaced as of 13 November 2008 the rules previously contained in Regulation No. 1348/2000.89 In fact, the rules contained in Article 30

2005, p. 141 et seq., noted LAVIANI F., ‘Il concetto di pendenza nel regolamento (CE) n. 44/2001 e la ritualità della notificazione’, ibidem, p. 79 et seq.

86 ECJ, 7 June 1984, case 129/83, Zelger v. Salinitri (note 84), points 14 et seq., at p. 2408.

87 As stressed by the Italian Corte di cassazione, sez. un., 15 February 2007, n. 3364, in Riv. dir. int. priv. proc., 2008, p. 156 et seq., esp. p. 159, the provision has been drafted in these terms pursuing clearly the purpose of preventing the introduction of fictitious pro-ceedings, which are served on the defendant or lodged with the court for the mere purpose of triggering the application of the rule on lis pendens without a real intention to give course to the action.

88 Adopted on 13 November 2007, in OJ, L 324, 10 December 2007, p. 79 et seq. See, with regard to the rules contained in the new service Regulation, FRANZINA P., ‘La notificazione degli atti giudiziali e stragiudiziali in ambito comunitario’, in: Diritto interna-zionale privato e cooperazione giudiziaria in materia civile, ed. by A. Bonomi (note 11), p. 217 et seq., esp. p. 221 et seq.; concerning the proposal by the European Commission and the common position adopted by the Council in view of the adoption of the new Regulation, DANIELE L., MARINO S., ‘Momento perfezionativo e regime linguistico delle notificazioni: dalla sentenza Leffler alla proposta di modifica del regolamento n. 1348/2000’, in: Riv. dir. int. priv. proc. 2007, p. 969 et seq., esp. p. 985 et seq.

89 Adopted on 29 May 2000, in OJ, L 160, 30 June 2000, p. 37 et seq. See, with regard to the repealed regulation, among others, CARELLA G., ‘La disciplina delle notificazioni e comunicazioni intracomunitarie: dalla cooperazione intergovernativa all’integrazione europea’, in: Diritto internazionale privato e diritto comunitario (note 13), p. 125 et seq.; FRIGO M., ‘Il regolamento comunitario sulle notificazioni in materia civile o commerciale’, in: Riv. dir. proc. 2002, p. 102 et seq.; ID., FUMAGALLI L., L’assistenza giudiziaria internazionale in materia civile, Padova 2003, p. 61 et seq.; HEIDERHOFF B.,



of ‘Brussels I’ and in Article 16 of ‘Brussels II-bis’ make reference, for those cases where the document introducing proceedings is served on the defendant first and then lodged with the court, to the moment when the authority competent for service receives the document. The rationale behind this rule is to avoid the unfair result of having the plaintiff suffer the consequences of a delay in service caused by events that are beyond his control. Yet, because in proceedings presenting an international character service often has to be performed on a defendant domiciled in a different country – e. g., pursuant to the alternative fora contemplated by Article 5 of ‘Brus-sels I’ – it seems reasonable to propose that with regard to the ‘authority competent for service’ the rule refers to the ‘sending authority’ in the forum, not the receiving authority in the Member State of the defendant’s domicile, as the plaintiff has no direct contacts with that state. Nevertheless, such a result does not occur if the plaintiff opts for direct service by the authorities of the Member State where ser-vice is to be performed pursuant to Article 15 of Regulation No. 1393/2007.90 1. The Problem of Language Requirements

As the ECJ has underlined in its case law concerning regulation No. 1348/2000, difficulties may arise regarding the linguistic regime of the document to be served, which, in the context of a document instituting proceedings, may also have some bearing on the moment the action is deemed to be commenced. In its decision in the Leffler case,91 the Court affirmed that the failure to include a translation of the document to be served into one of the languages contemplated by Article 8 creates an irregularity in service, which may be cured by subsequently providing the required translation as soon as possible. The ECJ has not clarified which of the two moments, handing over of the original document or supplying the required transla-tion to the relevant authority, would be relevant for the purposes of lis alibi ‘Verordnung (EG) des Rates vom 29.5.2000 über die Zustellung gerichtlicher and außergerichtlicher Schriftstücke in Zivil- oder Handelssachen in den Mitgliedstaaten (EG-ZustellVO)’, in: Europäisches Zivilprozeßrecht, ed. by Th. Rauscher, II ed., vol. 2, München 2006, p. 1163 et seq.; in respect of the relationship between the Regulation and the Hague Convention of 1965 on service, FORNER J. J., ‘Service of Judicial Documents Within Europe and in Third States (Regulation EC 1348/2000 and 1965 Hague Convention)’, in: International Civil Litigation in Europe and Relations with Third States, ed. by A. Nuyts, N. Watté, Brussels 2005, p. 391 et seq.; concerning some difficulties that have arisen in the application of the regulation, FRIGO M., ‘Problemi applicativi della normativa comunitaria in materia di notificazioni di atti giudiziari’, in: Riv. dir. int. priv. proc. 2006, p. 5 et seq.

90 So we have proposed in MARONGIU BUONAIUTI F. (note *), p. 246. The European Commission has underlined the uncertainty which surrounds this point in its Report concerning the application of the Regulation presented on 21 April 2009 to the European Parliament, the Council and the European Economic and Social Committee, doc. COM(2009) 174 final, point 3.5, at p. 8, suggesting the point might be clarified in the context of a revision of the Regulation.

91 ECJ, 8 November 2005, case C-443/03, Leffler v. Berlin Chemie AG, in ECR, 2005, p. I-9611 et seq.



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pendens when the document instituting proceedings is served on the defendant before being filed with the court, since that question was not raised.92

It seems reasonable to argue that the relevant moment is when the transla-tion is received by the authority competent for service, since initial service on the defendant of a document drafted in a language unknown to him would make it impossible to understand the content of the plaintiff’s claims.93 This solution now

92 See, in the sense that an assessment of the validity of service of the document instituting proceedings pursuant to the service regulation should be performed only by the judge first seized, as the latter is expected to do if the defendant does not appear before him – as formerly contemplated by Article 19 of Regulation No. 1348/2000 and currently by the same provision of Regulation No. 1393/2007 – whereas the judge second seized should limit himself to applying the rule under Article 30 of Brussels I Regulation, without being entitled to review the regularity of service of process in front of the judge first seized, FRIGO M., ‘Problemi applicativi’ (note 89), p. 16 et seq., esp. p. 18 et seq. The approach adopted by the author appears, however, not entirely persuasive, considering that, insofar as – in the case contemplated by Article 30, par. 2 Brussels I Regulation – the relevant moment is that of the handing over of the document instituting proceedings to the authority competent for service, the decision on which of the two moments – the delivery of the original document or that of the translation to the competent authority – is relevant for the purposes of the application of the rule on lis pendens appears to fall entirely within the limits of the assessment which the judge allegedly second seized is expected to make in order to apply the rule under Article 30, par. 2 Brussels I Regulation correctly. See, in the sense that the provisions contained in the service Regulation may be relevant also in respect of the application of Article 30 Brus-sels I Regulation, FRANZINA P. (note 88), p. 226, in note 33; the author subsequently returns on the point, ibidem, p. 254, in note 126, taking into account the presence of different opin-ions in this respect. Actually, the cases cited by the authors in respect of this issue appear not strictly relevant, since they concern either the previous rule under Article 21 Brussels Convention, which, as interpreted by the ECJ in Zelger (supra, note 84), posed the different requirement that the action should be definitively pending (see, among others, the English Court of Appeal decisions of 26 May 1995, Grupo Torras S.A. v. Al Sabah, in: Lloyd’s Law Reports 1996, 1, p. 7 et seq.; 16 March 2000, Molins Plc v. GD SpA, ibidem, 2000, 2, p. 234 et seq.; 5 February 2004, Tavoulareas v. Tsavliris [2004] EWCA Civ 48, ibidem, 2004, 1, p. 445 et seq., the latter applying the rules in Regulation No. 1348/2000, though, for temporal reasons, still in relation to Article 21 Brussels Convention) or the different situation contem-plated by Article 30, par. 1 Brussels I Regulation, where, as pointed out above (note 85, with reference to Tribunale di Milano, 8 June 2004, cit.), lodging of the document instituting proceedings with the court, not handing it over for service, is the relevant moment.

93 This solution, which we have proposed in MARONGIU BUONAIUTI F. (note *), p. 245 et seq., appears supported by a passage in the ECJ decision in the Leffler case (note 91), point 68, at p. I-9662, where the Court refers to the duty of the judge under Article 26, par. 2, Brussels I Regulation to suspend proceedings where the defendant does not appear until it is proved that he has been in a position to receive the document introducing proceedings within a sufficient time to enable him to arrange for his defence. As provided by the subsequent par. 3, the rule in question is to be replaced by the requirements posed by Article 19 of the service Regulation, in all cases where the document instituting proceedings is to be transmitted from one Member State to another. A corresponding requirement, as observed by the Court, is also posed by Article 34, par. 2, of the Regulation for the recognition of judgments pronounced in other Member States, and it is to be considered as implying that the document introducing proceedings should also be served in an appropriate language as



seems to be endorsed by Article 8, par. 3, of Regulation No. 1393/2007, which provides that, in such a case, the document is considered served on the date that service is made with the requested translation, except where the document has to be served within a certain time limit under the law of a Member State, in which case the date of the initial service applies. The latter exception, for the said reasons, appears inapplicable for the purposes of the application of the rules on lis alibi pendens.94

According to the subsequent ECJ decision in the Weiss und Partner case,95 a less restrictive attitude should be adopted where the failure to meet the linguistic requirements concerns materials attached to the document instituting proceedings, as opposed to the document itself. The Court stressed that when the materials attached to the document instituting proceedings are served on the defendant with-out a translation into one of the languages contemplated by Regulation No. 1348/2000 – applicable at the relevant time – the validity of the service is unaf-fected, provided the documents concerned are relevant mainly for evidentiary pur-poses and are not necessary to provide the defendant with adequate information on the content of the plaintiff’s claims. In this respect, the Court appears to implicitly refer to the duty of the parties to act in good faith, observing that where the party concerned has, during his contractual dealings with the other party, accepted rele-vant communications in the same language as that used in the documents in ques-tion, the judge is entitled to take that element into account to determine whether the said language can be considered as understandable by that party.96

2. The Implications of the Choice among Alternative Modes of Service

A further issue concerning the relevance of the modalities of service on the defen-dant for determining the moment when a judge is considered seized is posed by the option formerly contained Regulation No. 1348/2000 and currently, in broader terms, contained Regulation No. 1393/2007 that gives the plaintiff a choice between different modes of service. As the ECJ has stressed in its decision in the

contemplated by Article 19 of the service Regulation, considering that, otherwise, the defendant would not be in a position of suitably arranging for his defence.

94 Inevitably, the solution, contemplated already by Article 9 of Regulation No. 1348/2000 and confirmed by the corresponding provision of Regulation No. 1393/2007, of considering a separate date as relevant in respect of the plaintiff is inapplicable in the assessment of the moment when an action is to be considered as pending between the par-ties, since that moment is intrinsically the same for both parties. See, with regard to the solution contemplated under Article 8, par. 3, of Regulation No. 1393/2007, DANIELE L., MARINO S., (note 88), p. 990 et seq.; FRANZINA P. (note 88), p. 245 et seq.

95 ECJ, 8 May 2008, case C-14/07, Ingenieurbüro Michael Weiss und Partner GbR v. Industrie- und Handelskammer Berlin, in ECR, 2008, p. I-3367 et seq.

96 See, for a comment on the latter decision, FRANZINA P., ‘Translation Requirements under the EC Service Regulation: The Weiss und Partner Decision of the ECJ’, in: this Yearbook 2008, p. 565 et seq.



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Plumex case,97 where one of the parties uses two different modes of service equally provided for in the Regulation and service is effected according to the two modali-ties at different dates, the document is considered served at the moment when the first service is effected, irrespective of whether the latter is the ordinary mode of service contemplated by Article 3 et seq. of the Regulation or a special mode, such as service by post under its Article 14.98 Applying this solution to the constellation contemplated by Article 30, par. 2 of ‘Brussels I’, in cases where a copy of the document introducing proceedings is sent to the defendant by means of the postal services before another copy is handed over to the sending authority for service through the ordinary procedure contemplated under Article 4 et seq. of Regulation No. 1393/2007, the first date should be considered relevant for the purposes of lis alibi pendens.99

VI. A Brief Discussion of Some Proposals for Reform of the Rules on lis alibi pendens and Related Actions Contained in the Brussels I Regulation

Legal literature in different Member States has generally acknowledged the advantages derived from applying the rules on lis alibi pendens and related actions contained in the ‘Brussels I’ Regulation.100 Nonetheless, the extensive judicial prac-tice, both of the ECJ and of domestic courts, concerning the application of these rules has revealed a few problematic aspects, most of which have already been

97 ECJ, 9 February 2006, case C-473/04, Plumex v. Young Sports NV, in: ECR, 2006,

p. I-1417 et seq. 98 See, concerning the decision of the ECJ in this case, FRIGO M., ‘Cumulo e

questioni di priorità dei mezzi di notificazione nella disciplina comunitaria’, in: Int’l Lis, 2006, p. 129 et seq.; also FRANZINA P. (note 88), p. 248. See, for a case where a different solution has been retained, Cour de cassation, Ch. Soc., 21 September 2005, in Rec. Dalloz, 2005, Inf. rapides, p. 2479; abstract in: Rev. crit. dr. int. pr. 2006, p. 978. The latter case, however, must be considered exceptional, since relevance was given to the date of the second service for the purpose of the time limit for appealing against a decision, on account of the fact that the first service had been performed by means of a signification au parquet, which, by itself, does not provide evidence that the defendant has actually received the document.

99 Cf. MARONGIU BUONAIUTI F. (note *), p. 248. 100 Which, as observed above (Part II), have substantially replicated, with the sole

exception of some procedural modifications concerning the operation of the rules on related actions in Article 28 of the Regulation (see supra, Part II, sub C.2) and the new rule under Article 30 concerning the determination of the moment when a court is deemed to be seized (see supra, Part. V, sub A), those previously contained in the Brussels Convention.



pointed out above.101 Recently, the planned process for the Regulation’s revision which the European Commission has undertaken pursuant to its Article 73, has created the opportunity for a discussion of these aspects and for advancing some proposals for reform of those provisions whose application has proved more controversial. Among these discussions, the rules concerning lis alibi pendens and related actions have occupied a central place, particularly due to some recent controversial decisions by the ECJ that have attracted acute criticism, especially from jurists belonging to common law countries.102 A. The Relationship between Exclusive Choice of forum Agreements and

lis alibi pendens

The first controversial point signaled by the Commission in its Report on the appli-cation of the Regulation103 and in the attached Green Paper promoting a consulta-tion of the interested parties104 is given by the relationship between the lis pendens rules and agreements providing for the exclusive jurisdiction of the courts of a Member State pursuant to Article 23 of the Regulation. The concern has specifi-cally been raised that a strict application of the rules on lis pendens, as advocated by the Court of justice in the Gasser case discussed above,105 might encourage a party wishing to evade a valid jurisdiction agreement to seize a judge in a different Member State. The solution adopted by the ECJ – that the presence of an exclusive

101 With particular regard to the relationship between the rules on lis alibi pendens and those concerning choice of forum agreements, after the ECJ decision in Gasser (supra, Part II, sub B.2); the relationship between actions for the enforcement of an obligation and actions for a negative declaration, after the Gubisch and Tatry decisions (supra, Part III, sub A); the determination of party identity in cases of procedural substitution, such as in the Druot assurances case (supra, Part IV, sub B); and the determination of temporal priority among actions (supra, Part V). Concerning the rules on related actions, particular problems have arisen concerning their application in intellectual property matters (see infra, sub C).

102 In particular, the ECJ decisions of 9 December 2003, Gasser; 27 April 2004, Turner; 1st March 2005, Owusu, and, lastly, 10 February 2009, Allianz , briefly commented above (Part II, sub B.2-4 and Part III, sub A.3) have been seen by the English doctrine as systematically curtailing the space left to the traditional instruments of coordination among jurisdictions contemplated by the common law: see in particular, the remarks by HARTLEY T. C. (note 26), p. 813 et seq.

103 Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee on the application of Council Regulation (EC) No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Brussels, 21 April 2009, COM(2009) 174 final, available on <http://eur-lex.europa.eu>.

104 Green Paper on the review of Council Regulation (EC) No. 44/2001 on jurisdic-tion and the recognition and enforcement of judgments in civil and commercial matters, Brussels, 21 April 2009, COM(2009) 175 final, available on <http://eur-lex.europa.eu>.

105 ECJ, 9 December 2003, case C-116/02, Gasser v. MISAT (note 23) (supra, Part II, sub B.2).



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choice of court agreement pursuant to Article 23 of the Regulation creates no exception to the application of the rules on lis alibi pendens – was in fact held by many commentators as encouraging bad faith behavior and producing as a material effect a situation where the party interested in affirming the jurisdiction of the court designated in the agreement would have to sustain the inconvenience of defending the validity and enforceability of the agreement in front of the judge seized by the other party before being able to seize the designated court.106

The Commission has taken these difficulties into account, as they had been made subject to an extensive examination in a preliminary study that it commis-sioned to a qualified team of German scholars,107 and accordingly proposed a series of alternative solutions to the problem posed, some of which deserve a short com-mentary.

1. First Solution: Allowing the Designated Court to Proceed with the Case Even if Subsequently Seized

The first solution proposed is inspired to a somewhat unilateral approach, in that it consists of merely allowing the judge designated in the agreement providing for exclusive jurisdiction to proceed with the case without applying the lis pendens rules. Even though such a solution has received some support in a Report published in the UK by the House of Lords European Union Committee,108 it appears some-what simplistic and inevitably conducive to a situation of concurrent proceedings and prospective divergent decisions concerning the validity and enforceability of the jurisdiction agreement, thus contradicting the very purpose of the rules on lis alibi pendens contained in the Regulation.

106 See the Commission’s Report (note 103), point 3, p. 6 et seq., and the Green

Paper (note 104), point 3, p. 5 et seq. For some references to literature in respect of this issue, see supra, Part II, notes 23-24.

107 Ruprecht-Karls-Universität Heidelberg, Institut für ausländisches und internationales Privat- und Wirtschaftsrecht, Study JLS/C4/2005/03, Report on the Applica-tion of Regulation Brussels I in the Member States, presented by B. Hess, Th. Pfeiffer, P. Schlosser, Final Version September 2007, available at <http://ec.europa.eu/civiljustice/news/docs/study_application_brussels_1_en.pdf>, esp. WELLER M.-P., points 442 et seq., p. 194 et seq.

108 House of Lords, European Union Committee, 21st Report of Session 2008/09, Green Paper on the Brussels I Regulation. Report with Evidence, London, 27 July 2009, available at <http://www.publications.parliament.uk/pa/ld200809/ldselect/ldeucom/148/ 148.pdf>, points 49 et seq., p. 17 et seq., esp. points 57 et seq., p. 18 et seq., with reference to the Oral Evidence delivered by FENTIMAN R., attached to the Report, p. 1 et seq., and the Supplementary Memorandum submitted by the latter, attached to the above, p. 12 et seq., esp. points 13 et seq., p. 14 et seq.



2. Second Solution: A Reversal of the Rule on lis alibi pendens

This shortcoming would be overcome at least in part by the second solution pro-posed by the Commission, which, nonetheless, appears probably too radical, in that it proposes a reversal of the rule of lis alibi pendens in favour of the judge desig-nated in the agreement, so that it would be for the judge first seized in a different Member State to suspend proceedings until the judge designated in the agreement has decided whether it has jurisdiction. Such a solution, which would in substance take stock of the suggestions formulated by the English authors who critically commented on the ECJ decision in the Gasser case,109 would on the one side tend to align the rules contained in the Regulation to those introduced in an international perspective by the Hague Convention on choice of court agreements of 2005,110 while on the other side it would inevitably clash with the principle of reciprocal faith clearly and repeatedly stressed by the Court of Justice, whereby each court of

109 See, among others, HARTLEY T. C. ‘Choice of Court Agreements’ (note 23), p.

387 et seq.; ID., The Modern Approach (note 23), p. 177 et seq.; MANCE J. (note 23), p. 357 et seq.; MERRETT L. (note 23), p. 327 et seq.; FENTIMAN R., ‘Jurisdiction Agreements’ (note 23), p. 304 et seq.; ID., ‘Parallel Proceedings’ (note 23), p. 31 et seq.

110 Convention on choice of court agreements, adopted at the XXth Session of the Hague Conference on Private International Law on 30 June 2005, text available on <http://www.hcch.net>, not yet in force (at the moment of writing signed by the EU and the United States, and ratified by Mexico), Article 5, par. 2, which provides that the judge designated in an agreement pursuant to the Convention shall not decline jurisdiction on account of the fact that some other judge should decide the case. The rule suffers some exceptions, notably in relation to jurisdiction rules based on subject matter or value of the claim and to rules concerning the repartition of jurisdiction among different courts within the same country. Accordingly, the subsequent provision of Article 6 imposes on any other judge seized of an action falling within such an agreement the duty to suspend or dismiss proceedings, permitting nonetheless the latter judge to refuse to do so if he finds the jurisdiction agreement to be invalid or unenforceable. The rule contemplates in this respect different hypotheses, some of which appear to leave a certain space for a discretionary evaluation by the judge seized: that of the agreement being null and void under the law of the court chosen; that of incapacity of the parties to conclude it, pursuant, conversely, to the law of the judge seized; that of manifest injustice or a violation of public policy of the country of the judge seized and that of unenforceability due to force majeure, besides where the court chosen has declined jurisdiction. See with regard to the said rules, the Report on the Meeting of the Drafting Committee of 18-20 April 2005 in preparation of the Twentieth Session of June 2005, prepared by A. SCHULZ, Prel. Doc. No. 28 of April 2005, available on the above website, points 22 et seq., p. 9; for some comments, RÜHL G., ‘Das Haager Übereinkommen über die Vereinbarung gerichtlicher Zuständigkeiten: Rückschritt oder Fortschritt’, in: IPRax, 2005, p. 410 et seq., esp. p. 412 et seq.; BUCHER A., ‘La convention de la Haye sur les accords d’élection de for’, in: RSDIE 2006, p. 29 et seq., esp. p. 38 et seq.; KESSEDJIAN C., ‘La convention de la Haye du 30 juin 2005 sur l’élection de for’, in: Clunet 2006, p. 813 et seq., esp. p. 831 et seq.; also with regard to the question of the EC participa-tion in the conventions adopted by the Hague Conference, KRUGER TH., ‘The 20th Session of the Hague Conference: A New Choice of Court Convention and the Issue of EC Member-ship’, in: I.C.L.Q. 2006, p. 447 et seq.



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a Member State has to be trusted to correctly deciding whether or not it has juris-diction.111

Furthermore, the proposed solution might be conducive to irrational results where the judge designated in the agreement is not promptly seized by the other party. Should this not happen within a short time, in fact, the judge first seized in a different Member State would have to suspend proceedings at a more mature stage, possibly even after having himself ruled on the validity and enforceability of the agreement, with the ensuing risk of contradictory decisions in this respect.112

3. Third Solution: A Time Limit for Deciding on the Validity of the Jurisdiction Agreement

Probably most persuasive is the third solution proposed by the Commission Green Paper, whereby the modification to the existing rules – besides establishing some still relatively undefined forms of coordination and communication among the judges concerned113 – would be limited to imposing on the judge first seized a time limit for declaring the choice of court agreement to be invalid or unenforceable.114

Such a solution would surely foster a prompt resolution of the issue concerning the validity and enforceability of the choice of court agreement, thus leaving this decision to the first judge seized pursuant to the principle of reciprocal faith stressed above. Nonetheless, as properly pointed out in the Green Paper, such a solution presents the disadvantage of exposing the plaintiff to the risk that, in case the court seized does not reach a decision on the validity and enforceability of the choice of forum agreement within the term fixed for reasons which are beyond his control, he may be deprived of the right to sue in a forum that would appear perfectly legitimate should the agreement be subsequently found to be invalid or unenforceable. Therefore, provision should be made for an exception to the rule so as to protect the plaintiff’s rights in the latter circumstances, provided the delay by the court seized in reaching its decision on the matter is not imputable to his conduct.115

111 See supra, Part II, sub B.1-2. 112 The inherent risk of an inefficient coordination between parallel proceedings in

different Member States raised by both the first and second solutions proposed in the Commission’s Green Paper is acknowledged by the House of Lords Report (note 108), point 60, p. 19, assuming nonetheless, as suggested by Fentiman in his Oral Evidence (note 108), questions 27 et seq., p. 6 et seq., that allowing the designated court to proceed would remove the incentive for introducing parallel proceedings in another forum.

113 The Commission Green Paper (note 104), point 3, fourth indent, is rather vague in this respect, since it abstains from formulating concrete proposals, as properly remarked in the House of Lords Report (note 108), points 65, 70, p. 20 et seq.

114 Commission Green Paper (note 104), point 3, fourth indent, p. 5. 115 Ibidem. The Commission Green Paper has proposed some further solutions,

which, however seem scarcely persuasive: on the one side, the provision of a remedy in damages in case of breach of a choice of forum agreement as a further disincentive against



B. The Requirement of Identity of the Cause of Action in Relation to Actions for a Negative Declaration

The other controversial aspect of the rules on lis alibi pendens contained in the Regulation consists of those rules’ applicability, clearly stressed by the ECJ in its decisions in Gubisch and Tatry discussed above,116 to cases where an action for introducing concurrent actions elsewhere (ibidem, fifth indent); on the other, the introduc-tion of a standard form for choice of forum agreements pursuant to the Regulation, so as to reduce uncertainty concerning their validity (ibidem, seventh indent). Both proposals have been understandably criticized in the House of Lords Report (note 108), points 63-64, 69, 71, p. 20 et seq., observing, with respect to the former, that the Regulation is not the proper place, from a systematical perspective, for introducing a provision concerning substantial remedies, pointing also to the potential incompatibility of the action to be introduced for the enforcement of such a provision with the principle of reciprocal faith, which imposes on the courts of the Member States a duty not to interfere with the affairs of other Member States’ courts. Furthermore, doubts are advanced in the Report, points 63 and 69, concerning the effectiveness of such a remedy in the sense of discouraging tactical actions. In respect of the latter proposal, the House of Lords Report, points 64, 71, considers that imposing the use of a standard form for the drafting of choice of forum agreements would improperly restrict the parties’ freedom to draft such agreements in the mode more suitable to their specific needs. To this, may it be added that imposing the use of a standard form for drafting the agreement would not solve the other questions of validity relating to the capacity of the parties to conclude the agreement, to their legitimation to dispose of the disputed rights and to the validity of their consent, which, as it is known, raise even more complex issues than those related to mere formal validity. See, concerning these aspects, and, in particular, the delicate issue of the law applicable thereto, among others, BRIGGS A., Agreements on Jurisdiction and Choice of Law, Oxford 2008, esp. p. 21 et seq.; COIPEL-CORDONNIER N., Les conven-tions d’arbitrage et d’élection de for en droit international privé, Paris 1999, p. 7 et seq., esp. p. 85 et seq.; LINDENMAYR B., Vereinbarung über die internationale Zuständigkeit und das darauf anwendbare Recht, Berlin 2002, p. 71 et seq.; QUEIROLO I., Gli accordi sulla competenza giurisdizionale – tra diritto comunitario e diritto interno, Padua 2000, p. 203 et seq.; RIGHETTI E., La deroga alla giurisdizione, Milan 2002, p. 67 et seq.; The latter ques-tion has long since been debated in the Italian legal literature, also with regard to agreements for arbitration abroad, see, for some references, MORELLI G., Diritto processuale civile internazionale, II ed., Padua 1954, p. 182 et seq.; ID., ‘Legge regolatrice della clausola compromissoria per arbitrato estero’, in: Giur. comp. di dir. int. priv., vol. X, 1943, p. 74 et seq., reproduced in ID., Studi di diritto processuale civile internazionale, Milan 1961, p. 149 et seq.; BARILE G., ‘Lex fori e deroga alla giurisdizione italiana’, in: Riv. dir. int. 1960, p. 657 et seq.; DURANTE F., ‘Sulla legge regolatrice della forma del compromesso e della clausola compromissoria’, ibidem, p. 699 ss.; GAJA G., La deroga alla giurisdizione italiana, Milan 1971, p. 255 et seq. A particularly radical solution, consisting of substituting the control as to substantial validity of the agreement on choice of forum according to the law applicable to it by means of an all-encompassing reference to the principle of good faith in international trade is advocated, with regard to agreements under Article 23 Brussels I Regulation, by MERRETT L., ‘Article 23 of the Brussels I Regulation: A Comprehensive Code for Jurisdiction Agreements?’, in: I.C.L.Q. 2009, p. 545 et seq., esp. p. 559 et seq.

116 ECJ, 8 December 1987, case 144/86, Gubisch Maschinenfabrik v. Palumbo (note 36); 6 December 1994, case C-406/02, Tatry (Owners of the cargo lately laden on board the ship) v. Maciej Rataj (Owners of the ship) (note 45). See supra, Part III, sub A.



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performance is confronted with an action for a negative declaration concerning the same legal relationship. 1. The Proposal by the Commission

In this respect, the Commission Green Paper proposes to modify the rule under Article 27 to exclude the application of the rules on lis pendens in the said situa-tion.117 Concerning the proposed solution, the House of Lords Report is correct in stating that generally excluding the application of the rule on lis alibi pendens in all cases where a negative declaration is sought by one of the parties would probably be too hard and fast of a solution, since there might be cases in which the party has a perfectly legitimate interest in seeking such a declaration and is not merely forum shopping.118

Furthermore, the solution appears too simplistic because it overlooks the inevitable risk of allowing parallel proceedings to follow their course with the inherent danger of creating contradictory decisions, which the rules on lis alibi pendens are specifically designed to prevent.119

117 Commission Green Paper (note 104), point 3, sixth indent, p. 5, reflecting some

considerations contained in the Commission Report on the application of the Regulation, (note 103), points 3.3, third indent, p. 6; 3.4, first indent, p. 6 et seq., and 3.5, second indent, p. 7, where particular reference is made to the widespread use of actions for a negative declaration with the tactical purpose of blocking the other party’s action in a more closely connected forum particularly in the field of intellectual property disputes (see also infra, sub C) and in that of corporate loans.

118 House of Lords Report (note 108), point 62, reporting an opinion by Fentiman, expressed in his Oral Evidence (note 108), questions 25 et seq., p. 6 et seq., in the sense that, even if the solution proposed in the Green Paper seemed surprising in consideration of the fairly wide degree of acceptance which the interpretation formulated by the ECJ in the recalled decisions had obtained in practice, such a solution might have the benefit of paving the way for the application of the more discretionary rule on related actions under Article 28 of the Regulation. Oral Evidence by Government experts Lord Bach and Mr. Oliver Parker (questions 90 et seq., p. 23 et seq.) was less favourable to such a solution, pointing out that, while accommodating the English tradition in the sense of a more discretionary evaluation of the circumstances of the case, it would have disturbed the need for legal certainty felt by continental-european Member States. Besides, from the consultation carried out, many opinions held that actions for negative declaratory relief are not by themselves to be considered negatively.

119 This point, raised in the House of Lords Report (note 108), point 60, appears somewhat overlooked, on the assumption, suggested by Fentiman, Oral Evidence (note 108), question 27 et seq., p. 6 et seq., that if the action for a negative declaration is proposed in a Member State having a slow-moving judiciary, such an action would unlikely come to a judgment before that in the concurrent forum. This explanation is clearly unsatisfactory, since an action for a negative declaration could well happen to be proposed in a Member State possessing a fast-moving judiciary system and the concurrent action in a slower one. The Commission Green Paper, loc. ult. cit., does not seem to take into account this risk inherent in its proposal, proposing nonetheless, as a more prudent solution, to simply



2. The Solution Proposed in the Dropped Hague Draft on Jurisdiction and Enforcement of Judgments

In this respect, the solution which had been proposed in the unsuccessful project of a Hague Convention on jurisdiction and the recognition and enforcement of judg-ments in civil and commercial matters appeared more articulated.120 In fact, the project provided in Article 21, par. 6, for a kind of reversal of the rule on lis alibi pendens in the case at hand, so that it would have been for the judge seized with an action for a negative declaration to suspend proceedings upon application by one of the parties, even if seized first, whereas the judge seized with an action for per-formance regarding the same legal relationship would have been authorized to proceed even if seized second.121 Obviously, as observed above in respect of the parallel proposal of reversing the lis pendens rule in presence of an exclusive choice of forum agreement, such a modification could operate satisfactorily pro-vided the other judge is seized with the concurrent action within a short time. In fact, being hardly conceivable that any judge seized with an action for a negative declaration should have to suspend proceedings sine die waiting for another judge to be seized with an action for performance in respect of the disputed obligation, it would be inconvenient for the judge seized with the earlier action to suspend pro-

integrate the existing rule by providing for the suspension of the time bar for proposing an action for performance pending decision on the action for a negative declaration, so that, in case the latter is rejected, the substantial plaintiff is not deprived of his right to sue as a consequence of the lis pendens rule. A modification to the same effect, by means of admitting the introduction of an action for performance as a counterclaim to that for a negative declaration, had been advocated by SCHLOSSER P. (note 11), p. 183 et seq.; both alternatives had been envisaged by WOLF CH. (note 59), p. 366.

120 See the text of the project in HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, Commission II, Jurisdiction and Foreign Judgments in Civil and Commercial Mat-ters, XIX Session, Summary of the Outcome of the Discussion in Commission II of the First Part of the Diplomatic Conference, 6-20 June 2001, Interim Text, Prepared by the Perma-nent Bureau and the Co-reporters, available on <http://www.hcch.net> and reproduced in The Hague Preliminary Draft Convention on Jurisdiction and Judgments, ed. by F. Pocar, C. Honorati, Padua 2005, p. 327 et seq, Article 21. See also the Report of the Special Com-mission on the Preliminary Draft Convention on Jurisdiction and the Enforcement of Judg-ments in Civil and Commercial Matters, drawn up by P. NYGH and F. POCAR, Prel. Doc. No 11, available at the same website, p. 26 et seq., esp. p. 89 et seq. and reproduced in The Hague Preliminary Draft Convention on Jurisdiction and Judgments, p. 211 et seq., esp. p. 282 et seq.

121 See, with regard to the solution contemplated under Article 21, par. 6, of the pro-ject, the Report of the Special Commission, cit., p. 91 et seq.; among others, NYGH P., ‘Declining Jurisdiction under the Brussels I Regulation 2001 and the Preliminary Draft Hague Judgments Convention: A Comparison’, in: Reform and Development of Private International Law, Essays in Honour of Sir Peter North, ed. by J. Fawcett, Oxford 2002, p. 303 et seq., esp. p. 316 et seq.; STÜCKELBERG M., ‘Lis pendens and Forum non conveniens at the Hague Conference’, in: Brooklin J. of Int’l Law 2001, p. 949 et seq., esp. p. 976 et seq.; may we refer also to MARONGIU BUONAIUTI F. (note *), p. 197 et seq., esp. p. 201.



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ceedings when they have reached a mature stage, with the risk of vanifying the procedural activity performed up to that point.122

C. Problems Posed by lis pendens, Exclusive Jurisdiction and Related Actions in Intellectual Property Matters

The Commission Green Paper subsequently analyses some of the practical diffi-culties posed by the application of the rules on lis alibi pendens and related actions contained in the Regulation with regard to actions concerning the infringement of intellectual property rights.123 1. The Problem of s.c. Torpedo Actions

Insofar as the rules on lis alibi pendens are concerned, intellectual property appears to be the domain of s.c. torpedo actions, that is, actions for a negative declaration filed by a party alleged of infringing an intellectual property right in a court of a Member State known for its slow-moving judiciary system. The purpose of these actions is to take advantage of the rules on lis pendens contained in the Regulation to block for an extended time proceedings by the owner of the disputed right in the courts of another Member State that is possibly more closely connected with the facts of the case.124 With regard to this problem, the Green Paper proposes the same

122 This potential disadvantage inherent in the reversal of the ordinary mode of

operation for the lis alibi pendens rule had been taken into account in a parallel project, aimed at the revision of the rules on lis pendens and related actions contained in the Brussels Convention, due to OTTE K., PRÜTTING H., DEDEK H., ‘The GROTIUS Program: Proposals for Amending Article 21 and 22 of the Brussels Convention’, in: Eur. Review of Private Law 2000, p. 257 et seq., esp. p. 271 et seq. The proposed amendment to Article 21 of the Brussels Convention, ibidem, p. 278, accordingly provided that the rule on lis alibi pendens was to be reversed in the said case provided the action for performance was commenced within six months after the introduction of the action for a negative declaration.

123 Commission Green Paper (note 104), point 4, p. 6 et seq.; see also the Commission Report (note 103), point 3.4, p. 6 et seq.

124 The expression ‘Italian Torpedo’ has been used to designate a procedural tech-nique consisting of preventing an action for the enforcement of an intellectual property right, particularly in terms of compensation for the infringement, by means of an action for a negative declaration, involving frequently issues of validity of the right, in the courts of a Member State like Italy, known, among other European countries, for the excessive average length of court proceedings, by FRANZOSI M., ‘Worldwide Patent Litigation and the Italian Torpedo’, in: Eur. Intellectual Property Review 1997, n. 7, p. 38 et seq. The expression has then been used also in other fields to identify the tactical use of actions for a negative decla-ration: see, e. g., VAN HOUTTE H., ‘À propos des injonctions anti-suit et d’autres torpilles pour couler des actions étrangères’, in : L’efficacité de la justice civile en Europe, sous la dir. de M.-T. Caupain et G. de Leval, Bruxelles 2000, p. 147 et seq.



solution generally advanced in connection with actions for negative declarations, which has already been discussed above.125 2. The Problems Concerning Rules on Related Actions: Limits Due to

Exclusive Jurisdiction Rules

The observations contained in the Commission Report on the application of the Brussels I Regulation and the proposals formulated in the Green Paper also concerned the application of the rules on related actions contained in the Regula-tion, which in the context of intellectual property litigation have proven particu-larly controversial. Much debate has been raised by the ECJ’s solution in some cases where the applicability of the latter rules came into question.126 The first problem is created by the rule under Article 22, par. 4 of the Regulation, which grants exclusive jurisdiction to the courts of the Member State of registration over claims concerning the validity of an intellectual property right. As the ECJ has affirmed in its decision in the GAT case – probably over-stretching the role of exclusive jurisdiction rules – the said rule – or, actually, the corresponding rule previously contained in Article 16, par. 4 of the Brussels Convention – prevents the judge in a different Member State who is seized with an action by the right’s owner for compensation for an infringement from determining the right’s validity, even when the issue has been raised by the defendant as a defence and appeared there-fore as a preliminary question in the decision on the plaintiff’s claim. Such ques-

125 See the Commission Green Paper (note 104), point 4, p. 6, second indent, where the Commission proposes either to exclude the application of the rules on lis pendens in presence of action for a negative declaration, or, as an alternative, to improve the cooperation and communication among the judges concurrently seized, as had been proposed, though in rather vague terms, in point 3 concerning issues related to the application of the rules on lis pendens generally (cf. supra, sub B.1).

126 See in particular, among others, BRIGGS A., ‘Jurisdiction over Defences and Connected Claims: Roche v. Primus, GAT v. LuK, Reisch v. Kiesel’, in: Lloyd’s Mar. and Comm. Law Quarterly 2006, p. 447 et seq.; FRANZINA P., ‘Considerazioni intorno alla cognizione delle questioni pregiudiziali nella disciplina comunitaria della competenza’, in: Int’l Lis 2006, p. 119 et seq.; GALLI C., ‘La Corte di giustizia restringe drasticamente lo spazio per le azioni cross-border in materia di brevetti’, ibidem, p. 146 et seq.; KLINKERT F., MCCULLOCH A. J., COULSON N., KEFLLER N. C., ‘The (Cross) Border Is Closed: ECJ Rules on Patent Injunctions’, in: EuroWatch 2006, n. 14, p. 11 et seq.; WILDERSPIN M., ‘La com-pétence juridictionnelle en matière de litiges concernant la violation des droits de propriété intellectuelle. Les arrêts de la Cour de Justice dans les affaires C-4/03, GAT c. LuK et C-539/03, Roche Nederland c. Primus et Goldberg’, in: Rev. crit. dr. int. pr. 2006, p. 777 et seq.; WELLER M.-PH., in: Report on the Application of Regulation Brussels I in the Member States, ed. by Hess B., Pfeiffer Th., Schlosser P. (note 107), p. 179 et seq.; BOSCHIERO N., ‘Beni immateriali (diritto internazionale privato e processuale)’, in: Enc. del diritto, Annali, II, 2, Milan 2008, p. 115 et seq.; esp. p. 158 et seq.; may we refer also to MARONGIU BUONAIUTI F. (note *), p. 370 et seq.; subsequently, ROMANO G. P. (note 11), p. 144; D’ALESSANDRO E. (note 30), p. 60 et seq. See also the House of Lords Report (note 108), points 72 et seq., p. 21 et seq.



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tions, in fact, are generally considered to fall under the authority of the judge seized with the main action, who may decide on them incidentally, that is, with effects limited to the case at hand.127 3. The Limits Due to Territorial Scope of Rights

The ECJ demonstrated a rigorous attitude towards a joinder of parallel actions concerning intellectual property also in the Roche Nederland decision.128 There, the issue was the applicability of the rule under Article 6.1 of the Convention, which provided for jurisdiction based on connection regarding actions against a plurality of defendants in favour of the judge of the domicile of any of the defendants. The rule has been reproduced in the corresponding provision of the Regulation, which added the requirement that a close connection exist among the actions so as to give rise to a risk of irreconcilable judgments if they are treated separately, in terms which correspond to those adopted in Article 28, par. 3 of the Regulation as a gen-eral requirement for establishing whether two or more actions are to be deemed related for the purpose of the application of the latter provision.129 The Court held that the said rule could not apply to a plurality of actions against different defen-dants domiciled in various Member States based on the infringement of a European patent, considering that such a patent actually gives rise to a bundle of separate intellectual property rights, each having effect for the Member State where it is released. Hence, the various actions have different objects, which, according to the Court, excludes the need for the actions to be decided by the same judge.130

4. The Solution Proposed by the Commission

As it clearly appears, strict deference to the rules on exclusive jurisdiction on the one side and a restrictive interpretation of the rules providing for jurisdiction based on connection on the other produce the undesirable result of creating a situation which is unfavourable to the aim of realizing an effective coordination among parallel proceedings, which the Regulation should in principle pursue so as to pre-vent obstacles to the free circulation of judgments among Member States.131 A

127 ECJ, 13 July 2006, case C-4/03, Gesellschaft für Antriebstechnik mbH (GAT) v. Lamellen und Kupplungsbau (LuK), cit. (supra, Part II, sub C.1, note 30), esp. points 25 et seq., at p. I-6532 et seq.

128 ECJ, 13 July 2006, case C-539/03, Roche Nederland BV v. Primus, cit. (supra, Part II, sub C.1, note 30), p. I-6535 et seq.

129 See supra, Part II, sub C.1. 130 See the decision by the ECJ in the latter case, esp. points 27 et seq., at p. I-6580 et

seq. 131 We refer, for some critical comments concerning the attitude taken by the Court in

the two decisions, to the Authors cited above, note 125. See also the Commission Report on the application of the Regulation (note 103), point 3.4, second and third indent, p. 7.



solution to the latter problem might be found, as proposed in the Commission Green Paper, by introducing, for actions concerning the infringement of certain intellectual property rights committed by different subjects, a specific rule estab-lishing jurisdiction in the courts of the Member State in which the defendant responsible for coordinating the activities constituting infringement is domiciled, or, in case no such coordination exists, of the Member State with which the infringement is most closely connected.132

Such a solution would certainly pursue the aim of avoiding a multiplicity of proceedings concerning the infringement of a given intellectual property right. In addition, it would limit the plaintiff’s choice among a plurality of alternative fora – which would have been granted by applying a rule such as that contained in Article 6, par. 1 of the Regulation – to the forum where the infringement action is coordi-nated or which otherwise presents the closest connections with the case. The justi-fication for such a limitation, however, might appear questionable, since it would add a further constraint on the plaintiff’s choice among the alternative fora made available by the Regulation to that already posed by the rule contained in Article 22, par. 4, as interpreted by the ECJ. Such a constraint would probably result in an excessive divergence from the rules applicable under the Regulation in respect of actions concerning other matters, which might appear unwarranted by the peculi-arities of intellectual property litigation.133 Furthermore, as acknowledged by the

132 See the Commission Green Paper (note 104), point 4, fourth indent, p. 6 et seq. 133 The inappropriateness of an excessive departure from the traditional framework

of the system of distribution of jurisdiction among the courts of different Member States embodied in the Regulation in respect of disputes concerning intellectual property matters is underlined by BOSCHIERO N. (note 126), esp. p. 156 et seq., 161 et seq., with regard both to the central place occupied in that system by the forum of the defendant’s domicile and to the freedom of choice of forum. The said author refers also, in respect of the latter aspect, to the solutions contemplated by the Hague Convention on choice of forum of 30 June 2005, which, under Article 2, par. 2, sub n) and o), admits such choice in respect of actions for the infringement of copyright and related rights and of other intellectual property rights in case of breach of a contract concerning those rights – see in this respect SCHULZ A., ‘The Hague Project of a Global Judgments Convention and IP Rights: Recent Developments’, in: Intellectual Property in the Conflict of Laws, ed. by J. Basedow, J. Drexl, A. Kur, A. Metzger, Tübingen 2005, p. 39 et seq., esp. p. 47 et seq. – and by further proposals elabo-rated respectively by the American Law Institute, ‘Intellectual Property: Principles Govern-ing Jurisdiction, Choice of Law and Judgments in Transnational Disputes’, in: Intellectual Property in the Conflict of Laws, cit., p. 229 et seq., § 202, and by the European Max-Planck Group for Conflict of Laws in Intellectual Property (CLIP), ‘Exclusive Jurisdiction and Cross Border IP (Patent) Infringement. Suggestions for Amendment of the Brussels I Regu-lation’, in: Eur. Intellectual Property Review 1997, p. 195 et seq., point 3, sub a), cf. ‘Intel-lectual Property and the Reform of Private International Law – Sparks from a Difficult Relationship’, in: IPRax 2007, p. 284 et seq., esp. p. 286 et seq.; see also, more recently, Principles for Conflict of Laws in Intellectual Property, Second Preliminary Draft, June 6, 2009, available on the website of the Group <http://www.cl-ip.eu>, Art. 2.301; with regard to both sets of rules, see KUR A., UBERTAZZI B., ‘The ALI Principles and the CLIP Project: A Comparison’, in: Litigating Intellectual Property Rights Disputes Cross-border: EU Regulations, ALI Principles, CLIP Project, ed. by S. Bariatti, Padua 2010, p. 89 et seq.



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Commission Green Paper,134 the reference to elements of mere fact such as the place where the activity constituting infringement is being coordinated or, even more vaguely, the forum presenting the closest connection to the infringing activ-ity, carries with itself a broad scope for a discretionary evaluation by the judge seized. Such a broad scope of discretion could prove difficult to reconcile with the cornerstones of certainty and predictability in the determination of jurisdiction, which the ECJ has repeatedly identified as forming part of the inspiring principles of the system of distribution of jurisdiction among the courts of the Member States embodied in the Regulation.135

134 Commission Green Paper (note 104), p. 7. The risk that the solution ventilated by

the Commission might encourage forum shopping, since it would allow consolidating all claims in the forum which the plaintiff might choose among those having jurisdiction in respect of one of the occurred violations, is underlined also in the House of Lords Report (note 108), points 74 et seq., at p. 22, reflecting the opinion expressed by U.K. Government expert Oliver Parker, in the Oral Evidence attached to the Report, question 96, at p. 23 et seq. Despite the support given to the solution advocated in the Green Paper by Fentiman, Oral Evidence (note 108), questions 36-38, at p. 9, who welcomed the flexibility of the approach taken by the Commission and the aim pursued of promoting a consolidation of different actions in one forum, the European Union Committee of the House of Lords has considered the topic in need of further and more specific consideration (point 78, at p. 22).

135 See, concerning the role of certainty and predictability in the distribution of jurisdiction among the courts of different Member States under the Brussels I Regulation, supra, Part II, sub B and literature cited in note 24.