Goshawk Dedicated Ltd v Life Receivables Ireland Ltd-Jurisdiction, Lis Alibi Pendens and Problematic Use of the Brussels Regime

AuthorDavid Kenny
PositionLLB (Dub), LLM Candidate, Harvard Law School
Pages5-24
GOSHAWK
DEDICATED
LTD
V
LIFE
RECEIVABLES
IRELAND
LTD
-
JURISDICTION,
LIS
ALIBI
PENDENS
AND
PROBLEMATIC
USE
OF
THE
BRUSSELS
REGIME
DAVID
KENNY*
Introduction
l known
as
the
Brussels
Regulation,
harmonised
rules on
jurisdiction,
recognition and enforcement
of
judgments
in
civil
and
commercial
matters
throughout
the
European Union. Divergence between
the
Member
States'
jurisdictional
rules
was
thought
to
endanger
the
operation
of
the internal
market.
To
protect against
this,
the
rules
of
the
Brussels
Convention on
Jurisdiction
and
Recognition and
Enforcement
were
incorporated
into
the
law
of
the
European
Union, making
them
binding
and
directly
applicable.
Consistency and uniformity
are
the major
concerns
of
the
Regulation.
In
the
judgment
of
Owusu
v
Jackson,
2
the
European
Court
of
Justice
held
that
the
common
law
doctrine
of forum
non
conveniens
was
not
compatible
with this
Regulation.
This
doctrine was
a
cornerstone
of
the
common law
approach
to
jurisdiction.
It
allowed
English
and
Irish
courts
to
cede
jurisdiction,
where,
in
all
the
circumstances,
another
country's
courts
appeared
to
be more
closely connected
to
the
issue,
and
could
decide
the
issue
competently
with considerably
less
inconvenience
and expense.
The
European
Court
of
Justice
held
that this doctrine could
not
prevent
the
English
courts
from
assuming
jurisdiction
under
Article
2
of
the
Regulation,
which states
that,
subject
to
certain
listed
limitations,
"...persons domiciled
in
a
Member
State
shall,
whatever
their
nationality,
'
LLB
(Dub),
LLM
Candidate,
Harvard
Law
School.
The author
would
like
to
thank Stephen
O'Connor
and
the
TCLR Editorial Board
for
their
editorial
comments,
the
research
staff
of
the
Harvard
Law School
Library,
and
Ms
Bairbre O'Brien
for
her
comments
on
an
earlier
draft.
Any
errors
or
omissions
are
entirely my
own.
1
of
22
December
2000 on
jurisdiction
and
the
recognition
and
enforcement
of
judgments
in
civil
and commercial matters,
OJ
L12/1
[hereinafter
Brussels
Regulation].
2
Case
281/02
Owusu
vJackson
[2005]
ECR
1-1383
[hereinafter
Owusu].
©
2009
David Kenny
and
Dublin University
Law
Society
Trinity College
Law
Review
be
sued
in
the courts
of
that
Member
State".
3 This
meant
that
despite there
being
a
forum manifestly more
closely connected to the
action
in
question,
the
English
courts
cannot
cede
jurisdiction
under
the
Regulation
if
the
defendant
is
of
English domicile.
While
many
might consider the
loss
of
this
flexible
doctrine to
be
unfortunate,
few
could
think
it
unexpected.
The
flexible
and
uncertain case-by-case
analysis
of
the
doctrine was
anathema
to the
ideas
of
certainty
and
predictability
that
lie
at
the
heart
of
the
Brussels
Regulation.
However,
the
ECJ
decision
in
Owusu
may lead
to
the
abolition
of
another related
common
law
doctrine,
lis
alibi
pendens,
and
this
could
have
more
significant and
substantial
effects. Its
abolition
would
risk
the
Brussels regime
being
exploited
as
a
weapon
in
international
legal
disputes,
and
could lead to
the
courts
of
Europe
being
forced
to
disregard
the
courts
of
non-Member
States.
Clarke J
addressed
this
issue, which
had
not previously
arisen
in any
other Member
State
court,
in the
recent
High
Court
judgment
of
Goshawk
Dedicated Ltd
v
Life
Receivables
Ireland
Ltd.
4
This
judgment
is
a
harbinger
of
a
major
new development
in
the
law
of
jurisdiction.
There
can be
little
doubt but
that
that
traditional
common
law
jurisdiction
has,
at
a
minimum,
been
substantially eroded
by
the
provisions
of
the
Brussels Convention and
the
Brussels
Regulation.
In
reality,
the
issue
which
arises
in
this
case
is as
to
just
how
far
that
process
has
gone.'
If
Clarke
's
judgment
is
correct,
the process has gone very
far
indeed,
and
the
Brussels Regulation
has
probably
abolished not
only
common
law
lis
pendens,
but
the
civil
law
doctrine
also.
This
leaves
the
path
clear
for
unscrupulous parties
to
use
the
rules
to
frustrate
foreign litigation.
A
Separate Doctrine?
The
doctrine
of
lis
alibi
pendens
involves
deferring to the
jurisdiction
of
a
foreign
court when
that
court
is
an
appropriate
forum
and where
there
is
litigation
already
pending
before
it.
Such
pending litigation
in a
foreign
court
is
thought
to
provide
an
even
more
pressing
reason
to
reconsider
jurisdiction,
as
hearing
multiple
actions
in
different countries
is
not
only
costly
and wasteful, but risks
the
unpalatable
possibility
of
conflicting
3
Brussels
Regulation,
art
2.
4
[hereinafter
Goshawk].
'
90, at
[1.3].
[Vol.
12

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