Owusu, Lis Pedens and the Recent Recast of the Brussels I Regulation

• Author: Ivan Ovchinnikov
• Position: Senior Sophister LLB Candidate, Trinity College Dublin
• Pages: 40-70

© 2016 Ivan Ovchinnikov and Dublin University Law Society

OWUSU, LIS PENDENS AND THE RECENT

RECAST OF THE BRUSSELS I REGULATION

IVAN OVCHINNIKOV*

Introduction

In 1968, the Brussels Convention was concluded in order to facilitate the

reciprocal recognition and enforcement of judgments of courts or tribunals

among contracting states.1 It was later replaced by the Brussels Regulation2

which, while making certain adjustments, replicated the bulk of the

Convention’s provisions3 and made these directly applicable in and binding

on all EU Member States.4 Like its predecessor, the Regulation aimed to

implement measures relating to judicial cooperation in civil matters, which

were necessary for the sound operation of the internal market.5 Specifically,

it sought to address the differences in the national rules governing

jurisdiction and the recognition of judgments, which impeded the free

movement of judgments between Member States.6 Therefore, the

Regulation’s objective was to unify the laws relating to conflicts of

jurisdiction in civil and commercial matters, in order to establish a rapid and

simple system for the recognition and enforcement of judgments among the

Member States.7

However, its somewhat myopic focus on Member States alone

resulted in a lacuna concerning affairs involving states which are not

* Senior Sophister LLB Candidate, Trinity College Dublin. The author would like to dedicate

this article to his parents, Tatiana and Eduward Gendelman. The author would also like to thank

Dr Liz Heffernan and Tara Smyth for their helpful comments and suggestions on an earlier

draft of this article.

1 Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil

and Commercial Matters [hereinafter the Convention].

2 Council Regulation (EC) No 44/2001/EC of 22 December 2000 on jurisdiction and the

recognition and enforcement of judgments in civil and commercial matters, OJ L12/1

[hereinafter the Regulation].

3 Please note that while a lot of the case law discussed in this work was decided under the terms

of the Convention, when addressing the provisions of the Convention this work refers to the

corresponding provisions of the Regulation instead, for the sake of convenience.

4 Although Denmark initially opted out of the Regulation, it opted in at a later stage.

5 Recital (1) of the Regulation.

6 Recital (2) of the Regulation.

7 Ibid.

2016] Owusu, Lis Pendens and the Recent Recast of the Brussels I Regulation!

41

members of the European Union. It is this lacuna of the Brussels Regime,

as well as the recent “Brussels Recast” seeking to remedy it, that is the focus

of this article. The lacuna is a consequence and by-product of the

Regulation’s principal objective of ensuring certainty in the sphere of

Private International Law. This aim of certainty can only be achieved via

highly predictable rules.8 Therefore, the Regulation established a general

rule of jurisdiction under article 2 stating that “subject to this Regulation,

persons domiciled in a Member State shall, whatever their nationality, be

sued in the courts of that Member State”. In the case of Owusu v Jackson,9

the ECJ emphasised this article 2 as being mandatory in nature and that no

derogation could be made from the principle it lays down, except in

situations expressly provided for elsewhere in the Regulation.10 It was held

that the goals of uniformity and predictability required this general rule of

jurisdiction in article 2 to be applied strictly and inflexibly. The myopic

focus of the Regulation’s provisions on Member States, together with this

inflexibility of said provisions which prevents an interpretative extension

beyond their strict confines, causes particular unfairness in cases of lis

pendens in non-Member State courts.

Lis pendens is a situation whereby the dispute before a forum is

already the subject of proceedings pending before a court of another State.

While the Regulation establishes an express exception to article 2 when the

court of a Member State is faced with lis pendens in the court of another

Member State, it does not contain any provisions to deal with such a lis

pendens in a non-Member State court. Article 27 states that where

proceedings between the same parties and involving the same cause of

action are brought in different Member States, any court other than the court

first seised must stay proceedings. Article 28 in a similar vein provides that

when concurrent proceedings in Member State courts are related (as

opposed to identical),11 any court other than the court first seised may stay

proceedings. Therefore, while the Brussels Regulation enables courts to

effectively deal with a lis pendens in another Member State, it does not do

8 Recital (11) of the Regulation.

9 Case 281/02 [2005] ECR I – 1383 [hereinafter Owusu].

10 Case 281/02 [2005] ECR I – 1383, at 37. These exceptions are outlined in Chapter II of the

Regulation, and include the rules of exclusive jurisdiction under Article 22, choice-of-court

agreements under Article 23 and lis pendens under Articles 27-28.

11 Article 28(3) defines related actions as actions that are “so closely connected that it is

expedient to hear and determine them together to avoid the risk of irreconcilable judgments

resulting from separate proceedings.”