Erich Gasser GmbH v MISAT Srl
A court second seised must stay its proceedings until the court first seised has decided whether it has jurisdiction, even where the second court is designated by an exclusive jurisdiction clause and the first court's proceedings are slow.
Facts
Gasser, an Austrian company, supplied goods to MISAT, an Italian company, under contracts which, Gasser said, contained a clause giving exclusive jurisdiction to the Austrian courts. When a dispute arose, MISAT began proceedings first in Italy, seeking a declaration that the contract had been terminated and that it was not in breach. Gasser then sued for payment in Austria. The Italian courts were notoriously slow, and Gasser argued that the Austrian court should not have to wait for the Italian court to decide on its jurisdiction.
Legal principle
The Court of Justice held that, under article 21 of the Brussels Convention, the court second seised, whose jurisdiction was claimed under a jurisdiction agreement, must nevertheless stay its proceedings until the court first seised had declared that it had no jurisdiction. The rule was not affected by the excessive length of proceedings in the courts of the state where the court first seised was established. The decision encouraged the use of torpedo actions, brought in slow jurisdictions to delay proceedings elsewhere. The Brussels I Recast Regulation later reversed the decision, by giving priority to the court designated in an exclusive jurisdiction agreement.
Related cases on jurisdiction and forum non conveniens
- Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2011] UKPC 7, [2012] 1 WLR 1804
- Connelly v RTZ Corp plc [1998] AC 854
- FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45, [2022] AC 995
- Lubbe v Cape plc [2000] 1 WLR 1545
- Okpabi v Royal Dutch Shell plc [2021] UKSC 3, [2021] 1 WLR 1294
- Owusu v Jackson Case C-281/02, [2005] ECR I-1383
- Provimi Ltd v Aventis Animal Nutrition SA [2003] EWHC 961 (Comm)
- Shevill v Presse Alliance SA Case C-68/93, [1995] ECR I-415
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