Lloyd's Maritime and Commercial Law Quarterly
WHO DECIDES ON JURISDICTION CLAUSES?
Erich Gasser
v. MISAT
At last the European Court of Justice (“ECJ”) has decided one of the key issues at the heart of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 (the “Brussels Convention”): which court has jurisdiction to decide whether there is a jurisdiction clause: the court first seised in the dispute or the court chosen, if that is the court second seised? This involves considering the interrelationship between Arts 17 and 21 of the Brussels Convention. Although the ECJ in Erich Gasser GmbH
v. MISAT SrL
1
has decided these issues in the context of the Brussels Convention, the decision will apply equally to Arts 23 and 27 of the Council Regulation (EC) No. 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters2
(“the Brussels Regulation”), which replaces the Brussels Convention,3
and to the EFTA Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1998 (the “Lugano Convention”).4
The Gasser
decision completely reverses the controversial decision in Continental Bank NA
v. Aeakos Compania Naviera SA
.5
There the Court of Appeal held that, although the Greek court was first seised, the English court had jurisdiction because there was an exclusive English jurisdiction clause. The wording of the Brussels Convention itself did not clearly answer whether Art 17 was an exception to Art 21; but the Court of Appeal was so determined that its interpretation of the issue was correct, that it refused to refer the issue as a preliminary matter to the ECJ. Not only this, but the English court also granted
1. (Case C–116/02
) [2004] 1 Lloyd’s Rep 222.
2. It entered into force in the United Kingdom on 1 March 2002: see the Civil Jurisdiction and Judgments Order 2001.
3. Except in relation to Denmark. The Civil Jurisdiction and Judgments Act 1982 (Amendment) Order 2000 sets out the 1996 Accession Convention in Sched I and came into force on 1 January 2001. The 1996 Brussels Convention on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden is in force in Austria, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the UK but not Belgium.
4. It is in force in Austria, Belgium, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Sweden, Switzerland and the UK. The Civil Jurisdiction and Judgments Act 1982, s 3A (inserted by the Civil Jurisdiction and Judgments Act 1991) gives the force of law to the Lugano Convention, which is set out in Sched 1 to the 1991 Act. It came into force in the UK on 1 May 1992.
5. [1994] 1 WLR 588; [1994] 1 Lloyd’s Rep 505; followed in OT Africa Line Ltd
v. Hijazy
(The Kribi
) [2001] 1 Lloyd’s Rep 76. See A. Briggs, “Anti-European Teeth for Choice of Court Clauses” [1994] LMCLQ 158.
LLOYD’S MARITIME AND COMMERCIAL LAW QUARTERLY
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