Choice of Court Clauses and Lis Pendens under Brussels I Regulation

Ekaterina Ivanova

doi:10.5334/ujiel.ab

Abstract

The principle of party autonomy, known not only in the common law legal system but also in the civil law system, provides parties contracting in civil and commercial matters with the right to establish their own rules, as long as these rules do not contradict mandatory law. This right is presumed to be protected by the force of law. It follows, that when a choice of court clause is included in the contract, disputes are supposed to be solved by the court chosen by the parties. This principle is not compromised by the Brussels I Regulation (or previously, the Brussels Convention). Moreover, it is repeated in its Articles 1 and 23. At the same time, the rule of lis pendens, provided for by its Article 27, aims to preclude subsequent actions in other Member States if a court is already seized and allows the appearance 'on the legal scene' of a court other than the court chosen by the parties. And the lis pendens rule prescribes the latter to stay proceedings until the court not chosen, but first seized, examines and declines its jurisdiction.

Highlights

CaAsreticNleoteThe principle of party autonomy, known in the common law legal system1 and in the civil law system,2 provides parties contracting in civil and commercial matters3 with the right to establish their own rules, as long as these rules do not contradict mandatory law
That when a choice of court clause is included in the contract, disputes are supposed to be solved by the court chosen by the parties.This principle is not compromised by the Brussels I Regulation4
The lis pendens rule prescribes the latter to stay proceedings until the court not chosen, but first seized, examines and declines its jurisdiction. This rule and the decisions of European Court of Justice (ECJ) on this matter generated a large discussion among European law specialists, some claiming the need for courts to apply the common law doctrine of forum non conveniens,5 following the party autonomy concept, others, on the contrary, mentioning the danger of ‘déni de justice’6 if the party autonomy is not assisted in such a case by the provisions of mandatory law

Summary

Introduction

The principle of party autonomy, known in the common law legal system and in the civil law system, provides parties contracting in civil and commercial matters with the right to establish their own rules, as long as these rules do not contradict mandatory law. The lis pendens rule prescribes the latter to stay proceedings until the court not chosen, but first seized, examines and declines its jurisdiction This rule and the decisions of European Court of Justice (ECJ) on this matter generated a large discussion among European law specialists, some claiming the need for courts to apply the common law doctrine of forum non conveniens, following the party autonomy concept, others, on the contrary, mentioning the danger of ‘déni de justice’ (refusal of the legal system to solve the dispute) if the party autonomy is not assisted in such a case by the provisions of mandatory law. The following questions arise: under current legal provisions, if more than one court is seized, which law could, should and will respect the party autonomy as defined in the choice of court clause? Is it possible that the applicable rules respect the economic and legal interests of parties and at the same time respect due process rights and avoid a ‘déni de justice’? In order to answer these questions we shall examine the rules applicable under Brussels I in the case that, despite a choice of court agreement, a parallel proceeding is started (part I); in the second part, we shall try to analyze the main problems which could arise from these parallel proceedings in practice, and their possible solutions (part II)

Scope of European rules applicable to various types of forum choice clauses

Conclusion