565

Provisional Measures in the “Brussels I” Review

Journal of Private International Law Vol. 6 No. 3

Enforcement of Jurisdiction Agreements under Brussels I

THE ENFORCEMENT OF JURISDICTION

AGREEMENTS UNDER THE BRUSSELS I REGULATION:
RECONSIDERING THE PRINCIPLE OF PARTY
AUTONOMY

JONAS STEINLE AND EVAN VASILIADES*

PART I

A. INTRODUCTION

Nothing can be more material to the obligation of a contract than the means
of enforcement.1 This article examines the role of jurisdiction agreements
within the scope of the European Community Regulation 44/2001,2 also
known as the Brussels I Regulation (“the Regulation”). Under the current legal
framework of the Regulation, jurisdiction clauses are not uniformly enforced,
and thus not fully effective. European Commission legislators are aware of this
problem, and are addressing it.
In 2009, The European Commission (“the Commission”) issued a Green
Paper,3 asking interested parties to comment on potential improvements to the
Regulation, including the role of jurisdiction agreements. The commentary
derived from the Green Paper will lead to a formal proposal by the Commis-
sion to improve the Regulation.4

* Jonas Steinle is student in law, University of Heidelberg, Germany, and alumnus of the Master
of Laws programme (LLM International Commercial Law), University of Aberdeen. Evan
Vasiliades is alumnus of the Master of Laws programme (LLM International Commercial
Law), University of Aberdeen. The authors wish to thank Jason Martell, JD for his numerous
contributions to this article.
1
Von Hoffman v City of Quincy, 71 US 4 Wall 535, 552 (1866).
2
Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition
and enforcement of judgments in civil and commercial matters, [2001] OJ L12/1 (hereinafter
the “Brussels I Regulation”). The Regulation came into force on 1 March 2002. Originally
Denmark was excluded from the scope of the Brussels I Regulation (Art 1(3) of the Brussels
I Regulation). Denmark has, however, signed an agreement with the European Community to
apply the Brussels I Regulation ([2005] OJ L299/62). Since 1 July 2007 the Brussels I Regula-
tion applies to all EU Member States.
3
Green Paper on the review of Council Regulation (EC) No 44/2001 on jurisdiction and the
recognition and enforcement of judgments in civil and commercial matters, COM(2009) 175,
5ff (hereafter the “Green Paper”).
4
R Wagner, “Die Vereinheitlichung des Internationalen Privat- und Zivilverfahrensrechts zehn
Jahre nach Inkrafttreten des Amsterdamer Vertrags” [2009] Neue Juristische Wochenschrift 1911,
1913.
December 2010 Enforcement of Jurisdiction Agreements under Brussels I 566

Part I analyses the legal problems arising from the unenforceability of juris-
diction agreements governed by the Regulation and the related European
Court of Justice (ECJ) jurisprudence. Part II analyses the policy proposal to
remedy these problems by awarding damages for the breach of jurisdiction
agreements. The Regulation and many policy proposals insufficiently address
the legal problems associated with the enforceability of jurisdiction clauses. Part
III examines the various Green Paper recommendations that would modify the
jurisdiction rules of the Regulation. Part IV concludes by proposing that the
most favourable solution to the unenforceability of jurisdiction agreements and
related ECJ jurisprudence would be repealing the legislative obligation to sus-
pend litigation proceedings in favour of the court chosen by the parties in the
jurisdiction agreement. This suggestion aligns with the general conception of
the Regulation, which is to harmonise cross-border civil and commercial litiga-
tion within the European Union, and revives the principle of party autonomy
with regard to jurisdiction agreements in the scope of the Regulation.

B. JURISDICTION UNDER THE BRUSSELS I REGULATION

AND THE COMMON LAW

Addressing the problem of judicial enforcement of jurisdiction agreements

under the Regulation requires examining the different conceptions of juris-
diction in common law and civil law traditions. Comparing the two traditions
enables a full understanding of the conflicts inherent in jurisdiction clauses and
the Regulation, and offers a broader selection of corrective measures.

1. System of Jurisdiction under the Brussels I Regulation

The Regulation seeks to harmonise cross-border civil and commercial litigation
within the European Judicial Area.5 The Regulation regulates which Member
State court is the most appropriate venue for litigation and specifies jurisdic-
tion rules.6 The seven sections of Chapter II of the Regulation each contain
special rules of jurisdiction for cases involving certain types of law.7 Harmoni-
sation is achieved through the free movement of judgments between Member
States. A judgment rendered in one Member State is usually recognised and

5
JJ Fawcett, JM Carruthers and Sir Peter North (eds), Cheshire, North & Fawcett: Private International
Law (Oxford University Press, 4th edn, 2008), 204; B Hess, T Pfeiffer and P Schlosser, Report
on the Application of Regulation Brussels I in the Member States, 25 (hereinafter the “Heidel-
berg Report”).
6
Case 38/81 Effer SpA v Kantner [1979] ECR 825, para 6.
7
General jurisdiction which provides for the courts at the domicile of the defendant (s 1), spe-
cial jurisdiction (s 2), jurisdiction with regard to insurance, consumer contracts and employment
contracts (ss 3–5), exclusive jurisdiction (s 6) and jurisdiction agreements (s 7).
567
Provisional Measures in the “Brussels I” Review
Journal of Private International Law Vol. 6 No. 3

enforceable in all other Member States.8 Two of the most significant features
of the Regulation are jurisdiction agreements in Article 23, and the lis pendens
rule in Article 27.

(a) Jurisdiction Agreements

According to Article 23 of the Regulation, the parties can agree “that a
court . . . [is] to have jurisdiction to settle any disputes which have arisen or
which may arise in connection with a particular legal relationship” if one of
them is domiciled in a Member State. Jurisdiction agreements are included in
many international contracts because advance selection of the judicial forum
allows a higher degree of legal certainty, which is very valuable to commer-
cial parties engaged in transnational economic activity.9 Jurisdiction clauses also
save time and monetary resources by preventing disputes arising over the place
of litigation, which provides benefits of procedural economy. The most sig-
nificant benefit of jurisdiction agreements is that they substantiate the parties’
interests and promote the principle of party autonomy. Because establishing
jurisdiction involves both private and public interests, the ability to choose the
forum for the resolution of disputes is necessarily limited. The divergence of
private and public interests constitutes the fundamental conflict with regard to
jurisdiction clauses.10

(b) The Lis Pendens Rule

Although the Regulation provides a comprehensive system of jurisdictional rules
for clearly determining which court has jurisdiction over a particular legal pro-
ceeding, a situation may still appear where the same cause of action with the
same parties is brought before different courts. This predicament is referred to
as a lis pendens situation, involving multiple proceedings in multiple jurisdictions.
The Regulation explicitly seeks to prevent this type of situation from occur-
ring because it expends the procedural resources of two or more jurisdictions
and may result in irreconcilable judgments in the courts of different Member
States. Irreconcilable judgments are detrimental to the trust of the parties in
the legal system created by the Regulation. To prevent parallel proceedings
from arising, Article 27 of the Regulation assigns jurisdictional precedence to

8
Heidelberg Report, supra n 5, 25.
9
E Gottschalk and S Breßler, “ Missbrauch von Gerichtsstandsvereinbaurngen im europäischen
Zivilprozessrecht” [2007] Zeitschrift für Europäisches Privatrecht 56, 73; P Vlas, “The Hague Con-
vention on Choice of Court Agreements in Dutch Perspective” in Crossing Borders, Essays in
European and Private International Law, Nationality Law and Islamic Law in Honour of Frans van der
Velden (Deventer, Kluwer, 2006), 94; Scherk v Alberto-Culver Co (1974) 417 US 506, 507; A Bell,
Forum Shopping and Venue in Transnational Litigation (Oxford University Press, 2003), 56.
10
Adrian Briggs, Agreements on Jurisdiction and Choice of Llaw (Oxford University Press, 2008), 237ff;
CJS Knight, ‘The Damage of Damages: Agreements on Jurisdiction and Choice of Law’ (2008)
4 Journal of Private International Law 501, 504.
December 2010 Enforcement of Jurisdiction Agreements under Brussels I 568

courts in a chronological order. Once a court has opened a legal proceeding,

any other court subsequently presented with the matter must stay its proceed-
ings until the first court has reached its decision.11 The Article 27 rule is unique
and straightforward, providing legal certainty for the litigants. Comparable leg-
islation, such as the Hague Convention on Choice of Court Agreements (“the
Convention”),12 does not provide any firm rule of chronological jurisdictional
priority for litigation proceedings.13

2. Jurisdiction under the Traditional Common Law Rules of

England
Under the rules of English law, there are two main situations in which the Eng-
lish courts are competent to try an action in personam.14 Either the defendant is
present in England and Wales and can be served with the claim form there, or
the defendant is not present in England and Wales but can be served with the
claim form according to the special rules applicable in such situations.
The first situation represents the traditional approach of the English common
law rules.15 The mere presence of the defendant is a sufficient reason for the
English courts to assert jurisdiction over the defendant. This rule may lead to
situations in which the English courts are competent to hear a case although it
has no factual connection to England.16 In such cases, the English courts may
apply corrective measures such as the doctrine of forum non conveniens, which
permits the court to decline to hear a case that the court believes would be
more appropriately brought in another forum.17
Under the second situation, the defendant does not have a sufficient pres-
ence in England and Wales to be served with a claim form. In such cases the
claimant must seek the permission of the court to serve the defendant with
the claim abroad.18 To obtain such permission, the claimant must convince the
English court that three prongs are satisfied. The claimant must demonstrate

11
R Fentiman, “Parallel Proceedings and Jurisdiction Agreements in Europe”, in P de Vareilles-
Sommières (ed), Forum Shopping in the European Judicial Area (Hart Publishing, 2007), 27, 32ff.
12
Convention on Choice of Court Agreements elaborated by the Hague Conference of
Private International Law, concluded 30 June 2005, accessible at http://www.hcch.net/index_
en.php?act=conventions.text&cid=98 (last accessed 31 March 2010) (hereinafter the “Hague
Convention on Choice of Court Agreements”).
13
T Kruger, “The 20th Session of the Hague Conference: A New Choice of Court Convention
and the Issue of EC Membership” (2006) 55 International & Comparative Law Quarterly 447, 448;
TC Hartley, “The Hague Choice-of-Court Convention” (2006) 31 European Law Review 414,
421; A Schulz, “The Hague Convention of 30 June 2005 on Choice of Court Agreements”
(2006) 2 Journal of Private International Law 243, 266.
14
Fawcett, Carruthers and North, supra n 5, 354.
15
TC Hartley, International Commercial Litigation (Cambridge University Press, 2009), 77ff.
16
Fawcett, Carruthers and North, supra n 5, 354.
17
BJ Rodger, “Forum Non Conveniens Post-Owusu” (2006) 2 Journal of Private International Law 71,
71; Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 (HL).
18
Hartley, supra n 15, 96.
569
Provisional Measures in the “Brussels I” Review
Journal of Private International Law Vol. 6 No. 3

that: (i) there is a good arguable case coming under one of the jurisdictional
rules which are laid out in the Civil Procedure Rules; (ii) there is a serious issue
to be tried on the merits and a reasonable prospect of success; and (iii) service
of the claim form outside the jurisdiction should be permitted on a discretion-
ary basis by the English court.19 The English court will only grant permission
if these requirements are fulfilled satisfactorily.
The common law approach to jurisdiction is largely based on the discre-
tion of the courts, either as a corrective measure to limit the number of cases
coming under their jurisdiction in the first scenario, or to establish jurisdiction
by permitting the claimant to serve the defendant with the claim form out-
side the territory of the court. This enables the courts to guide the case to the
appropriate forum.20 Contrastingly, the Regulation offers a very firm system of
jurisdiction, tailored to particular situations, giving Member State courts less
discretion in deciding whether they will accept the case or not.

C. CONFLICTS WITHIN THE SYSTEM OF JURISDICTION

UNDER THE BRUSSELS I REGULATION

The Regulation is effective legislation for promoting judicial co-operation

within the European Community.21 The different legal concepts anchored in
the Regulation work well individually, but the interaction of these concepts may
result in a conflict of objectives. The Commission’s recently issued Green Paper
acknowledges the tensions that exist among the various legal concepts delin-
eated in the Regulation and seeks ways to improve their interaction.22

1. Relationship between a Jurisdiction Clause and

Lis Pendens – Gasser v MISAT
In Gasser v MISAT (2003),23 a conflict arose between a jurisdiction agreement
and the lis pendens rule when one of the litigants sued before a court outside of
the jurisdiction agreed to in the jurisdiction agreement. Considering which of

19
Fawcett, Carruthers and North, supra n 5, 373.
20
D Tan, “Damages for Breach of Forum Selection Clauses, Principled Remedies, and Control
of International Civil Litigation” (2005) 40 Texas International Law Journal 623, 642.
21
Heidelberg Report, supra n 5, 25.
22
Green Paper, supra n 3, 5ff.
23
Case C-116/02 Gasser v MISAT [2003] ECR I-14693. The facts of the case are as follows: the
Austrian Erich Gasser GmbH and the Italian MISAT Srl made a jurisdiction agreement during
their course of business which provided for the courts in Austria. When the Italian party sued
nonetheless in Italy and sought declaration of non-failure of performance, Gasser seized the
Austrian court under the choice-of-court agreement and sought payment of MISAT. The ques-
tion arose now whether the Austrian court had to stay proceedings according to the lis pendens
rule despite a jurisdiction agreement and wait until the Italian court had decided whether or
not it had jurisdiction.
December 2010 Enforcement of Jurisdiction Agreements under Brussels I 570

the two courts could decide on the matter of jurisdiction and whether Article
23 of the Regulation could prevail over Article 27 of the Regulation, the ECJ
held that no exception could be granted for jurisdiction agreements with regard
to the lis pendens rule. Courts are required to stay litigation proceedings accord-
ing to the lis pendens rule even where the court that is seized of the proceedings
second was designated in a jurisdiction agreement.24

(a) The Controversy about the Gasser Decision

The Gasser decision has been heavily criticised.25 The ECJ has confirmed its
decision in Gasser on more than one occasion in subsequent judicial decisions.
There are legitimate arguments for these rulings, particularly with regard to the
adherence to the system of jurisdiction laid out by the Regulation.26
This article does not reanalyse the Gasser decision itself, but rather identifies
the legal problems that have arisen from this judicial decision and proposes res-
olutions for those problems. Civil law and common law jurisdictions approach
the legal questions raised in Gasser differently27 due to fundamentally different
notions of jurisdiction.28 It is difficult to see how the civil law and common law
systems can be reconciled and each satisfied in the current Regulation environ-
ment. This rivalry permits a critical view of the Brussels regime and opens the
door to improving its system of jurisdiction.
In Gasser, the ECJ reasoned that in lis pendens situations there are risks of
parallel proceedings and irreconcilable judgments.29 To prevent these situa-
tions from occurring, there must be a strict lis pendens rule under Article 27 of

24
“In view of the foregoing, the answer to the second question must be that Article 21 of the
Brussels Convention must be interpreted as meaning that a court second seised whose juris-
diction has been claimed under an agreement conferring jurisdiction must nevertheless stay
proceedings until the court first seised has declared that it has no jurisdiction” (ibid, para 54).
25
In the English decision Continental Bank NA v Aeakos Compania Naviera SA and Others [1994] 1 WLR
588, the Court of Appeal had decided the other way round and granted an exception from
the lis pendens rule for a court designated by a jurisdiction agreement; R Fentiman, “Jurisdiction
Agreements and Forum Shopping in Europe” [2006] Journal of International Banking and Financial
Law 304, 304: “absolute refusal to consider the requirements of reasonableness”; TC Hartley,
“The European Union and the Systematic Dismantling of the Common Law of Conflict of
Laws” (2005) 54 International & Comparative Law Quarterly 813, 827; Sir Anthony Clarke, “The
Differing Approach to Commercial Litigation in the European Court of Justice and the Courts
of England and Wales” [2007] European Business Law Review 101; A Briggs, “The Impact of
Recent Judgments of the European Court on English Procedural Law and Practice” [2005]
Zeitschrift für Schweizerisches Recht 231; A Briggs, “Anti-suit Injunctions and Utopian Ideals” (2004)
120 Law Quarterly Review 529.
26
Briggs, ibid (2005), 242ff; F Blobel and P Spath, “The Tale of Multilateral Trust and the Euro-
pean Law of Civil Procedure” [2005] European Law Review 528, 532; P Mankowski, “Ist eine
vertragliche Absicherung von Gerichtstandsvereinbarungen möglich? ” [2009] Praxis des interna-
tionalen Privat- und Verfahrensrechts 23, 24.
27
Hartley, supra n 25, 813ff; Clarke, supra n 25, 101.
28
See part B. above.
29
Gasser v MISAT, supra n 23, para 41.
571
Provisional Measures in the “Brussels I” Review
Journal of Private International Law Vol. 6 No. 3

the Regulation, which provides legal certainty for the litigants.30 Furthermore,
the principle of mutual trust between Member State courts embodied in the
Regulation allows the court first seized to verify whether a valid jurisdiction
agreement exists between the litigants.31 Finally, this course of action respects
the right of the court first seized to determine whether or not the court pos-
sesses jurisdiction.
The Gasser decision is consistent with the wording of the Regulation.32 From
a legal perspective, it was necessary and correct to uphold the lis pendens princi-
ple, since it is impossible for a court to find an exception in the lis pendens rule if
the Regulation provides none. If one is to criticise the Gasser decision, it should
be due to the ECJ not sufficiently recognising the difficulties that would come
along with applying its decision to future cases with similar sets of facts.

(b) Difficulties Arising from Gasser for Jurisdiction Agreements

The first problem with the Gasser decision is the competence of the courts and
their judicial right independently to determine whether or not the court hear-
ing the matter has jurisdiction. The ECJ held that a court that is seized of
a legal matter after another court that has already been seized of the same
legal matter could never be in a better position than the first court to deter-
mine whether the first court has jurisdiction.33 This principle led the ECJ to
acknowledge the competence of the court first seized. The ECJ did not say,
however, that the court designated by the jurisdiction agreement loses its com-
petence if the jurisdiction agreement is valid because the court first seized must
necessarily answer this question to determine its own jurisdiction. According
to the ECJ, this is where the equality of Member State courts and the mutual
trust between different Member State courts comes into play.34 This argument
is unconvincing for two reasons. First, it is desirable for reasons of procedural
economy to keep the decision on jurisdiction and the decision on the merits
together in the same court whenever possible.35 Second, the party relying on
the jurisdiction agreement must assume the burden of defending itself before

30
Ibid, para 51.
31
Ibid, para 72.
32
Apologetic Mankowski, supra n 26, 24; attesting consequence to the decision, A Dickinson,
“Resurgence of the Anti-suit Injunction: The Brussels I Regulation as a Source of Civil Obli-
gation?” (2008) 57 International & Comparative Law Quarterly 465, 472.
33
Gasser v MISAT, supra n 23, para 48.
34
Ibid, para 72.
35
This is one of the main strengths of the concepts of Brussels I Regulation: it saves judicial
resources by providing clear rules of jurisdiction and the minimising of the courts involved in
the dispute resolution; F Sander and S Breßler, “Das Dilemma mitgliedstaatlicher Rechtsgleich-
heit und unterschiedlicher Rechtsschutzstandards in der Europäischen Union” [2009] Zeitschrift
für Zivilprozess 157, 176.
December 2010 Enforcement of Jurisdiction Agreements under Brussels I 572

a forum that it never accepted, which clearly does not respect the autonomy
of the parties.36
Another problem is the inherent risk that the court designated by a jurisdic-
tion clause may be deprived of its competence to decide the case because the
court that is first seized of the legal matter finds the jurisdiction clause invalid,
even if the court specified in the jurisdiction clause would have decided dif-
ferently. In light of the universal interpretation of jurisdiction agreements as
an independent legal instrument,37 it would seem that the possibility of courts
reaching different decisions regarding the validity of jurisdiction clauses should
be minimal. However, the ECJ itself recognised in the Gasser decision that veri-
fication of the existence of a jurisdiction clause “may necessitate delicate and
costly investigations”,38 a finding which becomes readily apparent when one
examines the unique nature of jurisdiction agreements in the context of private
international law. Since Article 1(2)(e) of the European Community Regulation
593/2008 (“Rome I Regulation“)39 specifically rules out agreements on choice
of court, national courts must apply their own rules of private international
law to determine the existence and validity of a jurisdiction agreement. Some
Member States refer to the lex fori while others refer to the lex causae, which
increases the risk that the validity of jurisdiction agreements will be decided
differently in different courts.40 Another factor contributing to this risk is the
fact that the procedural rules applied to determine whether or not the uni-
fied standards of a jurisdiction agreement are met is a matter of the lex fori.41
Accordingly, a risk exists that two courts from different Member States will
decide the validity of a jurisdiction clause differently, and that a case where
the validity of a jurisdiction clause is at issue may never reach the court where
the parties agreed it was to be decided.
Finally, the “Italian torpedo”42 may sink a jurisdiction agreement. This tactic,
where a party launches pre-emptive proceedings in a jurisdiction other than the

36
L Merrett, “The Enforcement of Jurisdiction Agreements within the Brussels Regime” (2006)
55 International and Comparative Law Quarterly 315, 330.
37
Gasser v MISAT, supra n 23, para 51; case C-214/89, Powell Dufrryn [1992] ECR I-1745, para
14.
38
Gasser v MISAT, supra n 23, para 26; See also Opinion of AG Légér in Gasser v MISAT,
C-116/02, para 76.
39
Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June
2008 on the law applicable to contractual obligations [2008] OJ L177/6.
40
Heidelberg Report, supra n 5, 159; Merrett, supra n 36, 330; J Kurth, Inländischer Rechtsschutz gegen
Verfahren vor ausländischen Gerichten (Berlin, Duncker & Humboldt, 1989), 66; For cases between
German and US parties, see Otto Sandrock, “Prorogierter Gerichtstand in Deutschland, Kosten
in den USA: Erstattungsfähigkeit in Deutschland? ” [2004] Recht der internationalen Wirtschaft 809,
810.
41
Merrett, supra n 36, 330.
42
The concept of a “torpedo claim” has its origins in patent law: M Franzosi, “Worldwide Patent
Litigation and the Italian Torpedo” [1997] European Intellectual Property Review 383; M Leitzen,
“Comeback des “Torpedo”?” [2004] Gewerblicher Rechtsschutz und Urheberrecht Internationaler Teil
1010ff.
573
Provisional Measures in the “Brussels I” Review
Journal of Private International Law Vol. 6 No. 3

jurisdiction chosen in the jurisdiction agreement in order to delay the proceed-

ings or gain other strategic advantages, was well established before the Gasser
decision43 and its existence threatens the legal certainty that the parties expect
from a jurisdiction agreement.44 Although in principle justice should prevail in
the court of any Member State, in practice a torpedo claim may severely dis-
tort the bargaining power of the parties.45 A party may be required to defend
itself before a court not specified in a jurisdiction agreement if the stakes are
high.46 The party believing in the validity of the jurisdiction clause may experi-
ence procedural and substantive disadvantages in the foreign legal forum. The
proceedings may be held in a foreign language and location, and foreign rules
of private international law or foreign rules of civil procedure applied by that
court could lead to an unfavourable legal outcome for the party defending itself
abroad. The party breaching a jurisdiction agreement could choose a legal
forum contrary to the agreement precisely for the purpose of gaining both
procedural and substantive advantages over the non-breaching party, making
the jurisdiction agreement ineffective.47

2. Procedural Remedies of the Member States – Turner v

Grovit
The problem of parties breaching jurisdiction agreements occurred well before
the Gasser decision.48 The English common law system has a different under-
standing of jurisdiction than many civil law countries.49 Under common law,
the courts may grant the remedy of anti-suit injunctions to enforce jurisdic-
tion agreements. One might assume that anti-suit injunctions could be used
to prevent the most serious cases of abusive “torpedo” claims.50 However,
Turner v Grovit (2004)51 illustrates that anti-suit injunctions are incompatible
with the Regulation because they would interfere with the competence of the
foreign court and would be contrary to the established principle of mutual

43
Franzosi, ibid, 383; J Mance, “Exclusive Jurisdiction Agreements and European Ideals” (2004)
120 Law Quarterly Review 357, 357.
44
Sander and Breßler, supra n 35, 157ff.
45
Ibid, 161.
46
C Ambrose, “Can Anti-suit Injunctions Survive European Community Law?’ (2003) 52 Inter-
national and Comparative Law Quarterly 401, 414; Sander and Breßler, supra n 35, 161.
47
Gottschalk and Breßler, supra n 9, 74; Tan, supra n 20, 639ff.
48
Continental Bank, supra n 25.
49
J Harris, “The Brussels I Regulation, the ECJ and the Rulebook” (2008) 124 Law Quarterly Review
523, 526; A Briggs, The Conflict of Laws (Oxford University Press, 2002), 112; B Steinbruck,
“The Impact of EU law on Anti-suit Injunctions in Aid of English Arbitration Proceedings”
[2007] Civil Justice Quarterly 358, 366.
50
Ambrose, supra n 46, 414; Briggs, supra n 10, 299; also the UK government had argued so in
Case C-159/02 Turner v Grovit [2004] ECR I-3565, para 28.
51
Turner v Grovit, ibid.
December 2010 Enforcement of Jurisdiction Agreements under Brussels I 574

trust between Member State courts.52 The Turner decision banned the use of
national procedural rules from the European Judicial Area if the use of such
rules would interfere with the effectiveness of the Regulation, rendering them
useless for the enforcement of jurisdiction agreements. The ruling of the ECJ,
that anti-suit injunctions are incompatible with the Brussels I Regulation, has
been confirmed in Allianz SpA v West Tankers Inc (2009)53 for cases involving an
arbitration agreement.

3. Consequences of Jurisdictional Conflicts

Although the Regulation seeks to provide predictable and firm jurisdiction
rules, it does not provide any means for courts to control or resolve conflicts
regarding the enforcement of jurisdiction clauses.54 The Gasser decision poses
severe problems for the enforcement of jurisdiction clauses, which may lead
parties to avoid using them. Thus, the principle of party autonomy is cur-
rently neglected in the interaction between jurisdiction agreements and the lis
pendens rule.55 The uncertainty of enforcement of jurisdiction clauses under the
Regulation may significantly impair the European Community in its function
of effectively regulating commercial litigation in the long run.56 In the interest
of expediting justice and for reasons of procedural economy it remains desir-
able to revive this important procedural instrument and to strengthen it in the
context of the Regulation.

PART II

D. CORRECTION WITHOUT CHANGES TO

THE J URISDICTIONAL C OMPETENCES

The current situation regarding the enforcement of jurisdiction clauses under

the Regulation is clearly unsatisfactory, as there are no legal remedies available
for parties to prevent or rectify the breach of a jurisdiction agreement. The

52
Ibid, para 27, 29; A Dutta and C Heinze, “Nationale Prozessrechtsinstitute auf dem Prüfstand
des europäischen Zivilverfahrensrechts” [2007] Europäische Zeitschrift für Wirtschaftsrecht 489, 489;
CJS Knight, “Owusu and Turner: The Shark in the Water?” (2007) 66 Cambridge Law Journal 288,
289.
53
Alianz SpA (formerly Riunione Adriatica di Sicurta SpA) v West Tankers Inc, C-185/07 [2009] All ER
(EC) 491, 10 February 2009.
54
I Nurmela, “Sancity of Dispute Resolution Clauses: Strategic Coherence of the Brussels
System” (2005) 1 Journal of Private International Law 115, 118.
55
Heidelberg Report, supra n 5, 194; Mankowski, supra n 26, 34.
56
A Dickinson, article on www.conflictoflaws.org to the review of the Brussels I Regulation on 11
June 2009, http://conflictoflaws.net/2009/brussels-i-review-choice-of-court-agreements/ (last
accessed on 31March 2010).
575
Provisional Measures in the “Brussels I” Review
Journal of Private International Law Vol. 6 No. 3

Gasser decision highlighted these problems. The Commission’s Green Paper

offered suggestions for improving the Regulation to give choice-of-court agree-
ments full effect in the future.57 Some of the Green Paper proposals operate
within the current legal framework of the Regulation, whereas other proposals
seek to address the current legal problems associated with the choice-of-court
clauses by amending the Regulation. The proposal of awarding damages which
operates within the current legal framework of the Regulation is discussed
first.

1. Award of Damages
The Green Paper58 put forward a suggestion proposed by legal scholars59 that
resulted from recent ECJ jurisprudence: the possibility of awarding damages
for the breach of a jurisdiction agreement. Assessing this alternative impartially
requires examining its effects in the context of two different legal traditions
and jurisdictions within the European Community. Examining the possibility
of awarding damages for the breach of a jurisdiction agreement under British
common law and German civil law will demonstrate some of the legal ques-
tions that might arise.

(a) Obligating Effect of Jurisdiction Agreements

Granting damages for the breach of a jurisdiction clause seems relatively
straightforward. The parties agree in advance on the jurisdiction where any
dispute between them will be settled. If one of the parties breaches this agree-
ment, then the other party may claim damages for any loss incurred as the
result of the breach. This explanation is misleadingly simple, since it is not
entirely clear under current jurisprudence whether an exclusive jurisdiction
agreement contains rights and obligations that may be enforced by the award-
ing of damages. This question is not answered uniformly under British and
German law, which complicates this issue.

57
Green Paper, supra n 3, 5ff.
58
Ibid, 5.
59
Considering this possibility, G Blanke, “The ECJ’s Recent Jurisprudence on Anti-Suit Injunctions
under the Brussels Convention: A Promising Début for a more Prominent Role for Arbitration in
European Commercial Dispute Resolution at the Dawn of the 21st Century? ” [2005] European
Business Law Review 591, 611; Ambrose, supra n 46, 415; A Briggs and P Rees, Civil Jurisdiction
and Judgments (London, Singapore, LLP, 2005), 342ff.
December 2010 Enforcement of Jurisdiction Agreements under Brussels I 576

(i) Merely Procedural Impact

One approach taken by many German60 and a few British61 scholars is to inter-
pret jurisdiction agreements as not involving substantive rights and obligations.
In Germany, this perspective is derived from the jurisprudence of the German
Federal Court (Bundesgerichtshof), which classifies a jurisdiction agreement as a
contract about the procedural relationship between the parties.62 Consequently,
the effects of a jurisdiction clause are limited to its effect on prorogation or
derogation of certain courts (prozessuale Verfügungswirkung), meaning that a juris-
diction clause may add or remove certain courts from the competent courts
which are available to the parties, depending on the negative or positive effect
of a jurisdiction agreement.63 Under this approach, damages are unavailable
for the breach of a jurisdiction clause simply because there is no primary obli-
gation which can be derived from it.

(ii) Jurisdiction Clauses as Contracts with Obligating Effect

Many British courts64 and commentators65 and a few German scholars66 attribute
legal rights and obligations to a jurisdiction clause. An exclusive jurisdiction
agreement is considered a contractual promise to sue only in the designated

60
Mankowski, supra n 26, 26ff; Sandrock, supra n 40, 809, 813; I Naumann, Englische anti-suit
injunctions zur Durchsetzbarkeit von Schiedsvereinbarungen (Tübingen, Mohr Siebeck, 2008), 96; A
Dutta and C Heinze, “Anti-suit injunctions zum Schutz von Schiedsvereinbarungen” [2007]
Recht der Internationalen Wirtschaft 411, 412.
61
LC Ho, “Anti-suit Injunctions in Cross-border Insolvency: A Restatement” (2003) 52 International
and Comparative Law Quarterly 697, 708ff.
62
The German Federal Court classifies jurisdiction clauses as a contract about the procedural
relationship between the parties, whose permissibility and effects are governed by (German)
procedural law and whose accomplishment is determined according to the substantive law
which is applicable to the contract; German Federal Court (Bundesgerichtshof [BGH]) [1968]
Neue Juristische Wochenschrift (NJW), 1233; BGH [1972] NJW, 1622; BGH [1989] NJW,
1431; BGH [1997] NJW, 2885.
63
T Pfeiffer, “Die Absicherung von Gerichtsstandsvereinbarungen durch Vereinbarung eines
materiell-rechtlichen Kostenerstattungsanspruchs”, in Liber amicorum Walter F. Lindacher – Facet-
ten des Verfahrensrechts (Köln, Berlin, München, Carl Heymanns Verlag, 2007), 77; R Bork, s 38
Zivilprozessordnung (ZPO) [Code of Civil Procedure] (Tübingen, Mohr Siebeck, 22nd edn, 2003),
para 47; Ho, supra n 61, 708ff.
64
British Airways Board Respondents v Laker Airways Ltd and Other Appellants [1985] AC 58; Continental
Bank, supra n 25; Donohue v Amco Inc and Others [2002] Lloyd’s Rep 425.
65
Merrett, supra n 36, 317; Briggs, supra n 10, 325; J Harris, “Understanding the English Response
to the Europeanisation of Private International Law” (2008) 4 Journal of Private International Law
347, 388ff; D Tan and N Yeo, “Breaking Promises to Litigate in a Particular Forum: Are Dam-
ages an Appropriate Remedy?” [2003] Lloyd’s Maritime and Commercial Law Quarterly 435ff.
66
D Jasper, Forum Shopping in England und Deutschland (Berlin, Duncker & Humboldt, 1990), 126ff;
Kurth, supra n 40, 67; J Schröder, “The Right Not To Be Sued Abroad”, in Festschrift für Ger-
hard Kegel zum fünfundsiebzigsten Geburtstag (Stuttgart, Berlin, Köln, Mainz, Kohlhammer, 1987),
523, 533; P Gottwald, “Internationale Gerichtsstandsvereinbarungen, Verträge zwischen Proz-
essrecht und materiellem Recht”, in Festschrift für Wolfram Henckel: zum 70. Geburtstag am 21 April
1995 (Berlin, de Gruyter, 1995), 295, 307ff.
577
Provisional Measures in the “Brussels I” Review
Journal of Private International Law Vol. 6 No. 3

court, and not complying with this promise is viewed as a breach of contract.67
Accordingly, a jurisdiction clause is more than merely a prorogation of a court
that the parties want to be competent. It also influences the behaviour of the
parties in the way that they must act to comply with the agreement. Advocates
of this approach point to the “right not to be sued abroad” for each of the
parties, and can see no reason why secondary obligations in the form of dam-
ages should not be available.68

(iii) Discussion
There are two clearly opposed approaches to the question of whether juris-
diction agreements have an obligating effect on the parties that would allow
granting damages for their breach. While many German scholars and courts
tend to construe jurisdiction clauses as having a mere procedural impact, and
accordingly refuse to award damage for their breach, most British scholars and
courts would support granting such damages. It is uncertain whether one can
derive such an obligating effect from Article 23 of the Brussels I Regulation
itself.
The answer to this question can only be relevant to exclusive jurisdiction
agreements, because non-exclusive jurisdiction agreements cannot entail any
such obligation.69 Non-exclusive jurisdiction agreements may designate juris-
diction in a court which otherwise would not be competent,70 widening the
range of courts that can potentially be seized of the litigation proceedings.
Regarding exclusive jurisdiction agreements, any claim brought before a court
other than a forum agreed upon violates the agreement.71 Exclusive jurisdiction
agreements have an obligating effect and implicitly “lock out” all courts not
designated. This is the necessary result of exclusivity.
It is argued that parties cannot, through contractual agreement, designate to
or oust jurisdiction from a court.72 However, the parties to a jurisdiction agree-
ment do not intend to bind the court specified in their agreement, but rather

67
Cf Lord Diplock in British Airways, supra n 64, 81, stating that a jurisdiction clause is “contrac-
tual in origin”; A Briggs, “Crossing the River by Feeling the Stones: Rethinking the Law on
Foreign Judgments” [2004] Singapore Year Book of International Law and Contributors 1, 6; Tan, supra
n 20, 632.
68
“If a party breaches a clear and express promise not to issue proceedings, it is impossible to see
how a claim for damages could be refused once the breach is demonstrated.”; Briggs, supra n
10, 325; similarly, “Absent specific performance, breach of an enforceable contractual promise
resulting in loss will usually give rise to a claim for damages”, Merrett, supra n 36, 319; Briggs
and Rees, supra n 59, 343.
69
Merrett, supra n 36, 316.
70
Ibid.
71
P Schlosser, Der Justizkonflikt zwischen den USA und Europa (Berlin, Walter de Gruyter, 1985), 37.
72
Briggs, supra n 10, 325: “Parties cannot by their stipulation confer jurisdiction on the court
where none exists”; Ho, supra n 61, 708, n 74; Tan, supra n 20, 651; Tan and Yeo, supra n 65,
437.
December 2010 Enforcement of Jurisdiction Agreements under Brussels I 578

to control the behaviour of one another.73 Although the parties may agree that
a legal dispute must be submitted to a certain court, they cannot agree that the
court will actually decide the dispute, as only the court in question can make
such a decision.
An argument in favour of acknowledging the obligating effect of jurisdic-
tion agreements can be derived from the general idea of jurisdiction clauses.
A jurisdiction agreement not only creates legal predictability and certainty for
the parties, it saves time and monetary resources associated with determining
the venue for litigation. These benefits depend upon the parties adhering to
the agreement, the court designated jurisdiction enforcing the agreement, and
courts not designated jurisdiction not interfering in the litigation proceedings
in any way that would prevent the court designated jurisdiction from render-
ing a valid judgment. The imperative question that arises is why the parties to
a legal agreement would agree to submit any potential dispute exclusively to a
designated court if they cannot reasonably guarantee that this written agree-
ment will be followed. The interests of the parties demand that an obligating
effect should be attributed to jurisdiction agreements.
Under the Regulation, it remains doubtful whether a litigating party can
rely upon a court recognising the obligating effect of a jurisdiction agreement.
Although it would be desirable to acknowledge uniformly the obligating effect
of an exclusive jurisdiction clause, certain jurisdictions are reluctant to do so,
while others are not. German courts have little interest in acknowledging an
obligating effect in purely domestic cases. German procedural law enables the
domestic court that is deemed the appropriate court to rule on a legal matter to
consider the total procedural costs that have accrued in the litigation proceed-
ings, including those procedural costs incurred for proceedings before another
domestic court that has heard the case but declared itself not to be compe-
tent.74 Under this rule, there is no requirement for the acknowledgement of
an obligating effect in domestic cases under German law. This might be one
reason for the reluctance of German scholars to attribute an obligating effect
to jurisdiction clauses in international cases.
The interests of the parties and the risks stemming from a breach of the
jurisdiction agreement are much more serious in international cases.75 Factors
that may complicate an international contract are often a different language and
an entirely different legal system. Since such factors can significantly influence
the bargaining power of parties involved in international litigation proceedings,
it is unsurprising that parties involved in international commercial transactions

73
Cf Briggs, supra n 10, 325.
74
S 281, para 3, sentence 2, German Code of Civil Procedure (Zivilprozessordnung).
75
P Schlosser, “Materiell-rechtliche Wirkungen von (nationalen und internationalen) Gerichts-
standsvereinbarungen? ” in Facetten des Verfahrensrechts, Liber amicorum Walter F Lindacher (Köln,
Berlin, München, Carl Heymanns Verlag, 2007), 115ff.
579
Provisional Measures in the “Brussels I” Review
Journal of Private International Law Vol. 6 No. 3

often include a jurisdiction agreement in their contracts. Given the high stakes
involved and importance attached to jurisdiction agreement by parties engaged
in international commercial transactions, the obligating effect of a jurisdiction
agreement in international cases should be acknowledged. A party could make
a claim for contractual or non-contractual damages,76 a scenario that ultimately
depends on the law applicable to the case.

(b) Permissibility of the Award of Damages in View of the Jurisprudence of the ECJ
Although allowing claims for damages may be desirable, it is not necessarily
permissible under the Regulation. Recent ECJ jurisprudence raises doubts as
to whether the awarding of damages is consistent with ECJ rulings. Assessing
the permissibility of awarding damages requires distinguishing between two
scenarios: on one hand, the court which is seized in an alleged breach of the
jurisdiction agreement recognises that there is a valid jurisdiction agreement
and declines jurisdiction in favour of the court designated by the agreement;
on the other, the seized court accepts jurisdiction and decides the case on its
merits because it concludes that the jurisdiction agreement is invalid.
In the second scenario, a court other than the court where the litigation
proceedings on the merits took place would have to hold the jurisdiction
clause valid before it could sanction its breach by granting damages.77 There
would thus be conflicting decisions regarding the validity of the jurisdiction
agreement. Under this scenario, awarding damages would essentially be an
assessment of the competence of the court where the litigation proceedings
on the merits occurred. It is difficult to see how an indirect assessment of the
jurisdiction of another Member State’s court can be reconciled with ECJ rul-
ings. The competence of a Member State’s court to determine independently
its own jurisdiction is considered a “granite pillar” of recent ECJ jurisprudence,
and it is unlikely that the ECJ will deviate from this principle.
Under the more common first scenario, the court seized in an alleged
breach of the jurisdiction agreement dismisses the proceedings in favour of
the court designated. The decisions of the courts would be consistent regarding
the validity of the jurisdiction agreement. Under the first scenario, it must be

76
The approaches in the tort law of the UK and Germany are quite similar. A first suggestion
is to submit the claim to the tort of malicious prosecution (CH Tham, “Damages for Breach
of English Jurisdiction Clauses: More than Meets the Eye” [2004] Lloyd’s Maritime and Commer-
cial Law Quarterly 46, 60) or corresponding to Arglistiges prozessuales Verhalten under German law
(Sandrock, supra n 40, 814). However, the scholars themselves admit that it is uncertain whether
such a claim could be successful, namely because it is doubtful whether malice could be estab-
lished on the side of the defendant (Sandrock, ibid) and whether this tort can be extended
to civil proceedings at all (Tham, ibid, n 80). A second cause of action could be the tort of
unlawful interference with trade or business (Tham, ibid, 60) or respectively a Eingriff in einen
Gewerbebetrieb under German law (Schröder, supra n 66, 539ff) although it is challenged that the
latter cause of action under German law might be available at all.
77
Sander and Breßler, supra n 35, 174.
December 2010 Enforcement of Jurisdiction Agreements under Brussels I 580

determined whether the two litigation proceedings fall under different causes of
action.78 If the proceedings would fall under the same causes of action, then it
appears that there is an apparent conflict pertaining to the concept of recog-
nition and enforcement of judgments within the European Judicial Area. The
ECJ interprets the term “cause of action” very broadly such as the establish-
ment of a mere contractual relationship between the parties.79 Even advocates
of a solution that allows for the awarding of damages acknowledge that this
solution would face many obstacles inherent under the present guideline of the
ECJ rulings.80

2. Interim Result
Although acknowledging an obligating effect of jurisdiction clauses falling under
Article 23 of the Brussels I Regulation seems desirable on its face, it is doubtful
that this option would be compatible with ECJ jurisprudence. It seems unlikely
that this approach will be the favoured solution for addressing the problems
relating to jurisdiction agreements and the lis pendens rule. Rather, the Brussels
I Regulation must be amended legislatively.

PART III

E. CHANGES TO THE SYSTEM OF JURISDICTION

UNDER THE BRUSSELS I REGULATION

Besides the proposal to award damages, discussed above, the Commission’s

Green Paper also suggests changes to the system of jurisdictional compe-
tences under the Regulation. The Green Paper provides three possibilities81 for
alleviating the trouble of “torpedo” claims: releasing the court specified in a
jurisdiction clause from its obligation to stay proceedings according to the lis
pendens rule in Article 27; reversing the obligation to suspend proceedings in
cases where Articles 23 and 27 conflict; and excluding the application of the
lis pendens rule under Article 27 in the case of parallel proceedings where nega-
tive declaratory relief is at issue.

78
P Břìza, “Choice-of-Court Agreements: Could the Hague Choice of Court Agreements Con-
vention and the Reform of the Brussels I Regulation Be the Way Out of the Gasser–Owusu
Disillusion? ” (2009) 5 Journal of Private International Law 537, 551.
79
Case 144/86 Gubisch Maschinenfabrik KG v Giulio Palumbo [1987] ECR 4861; Case C-406/92
Tatry/Maciej Rataj [1994] ECR I-5439.
80
See Briggs, referring to the decisions of the ECJ in Wolf v Cox 42/76 [1976] ECR 1759 and
Hoffmann v Krieg 145/86 [1988] ECR 645 in Briggs, supra n 10, 333; Ambrose, supra n 46, 415ff;
Břìza, supra n 78, 537, 549.
81
Green Paper, supra n 3, 5.
581
Provisional Measures in the “Brussels I” Review
Journal of Private International Law Vol. 6 No. 3

1. Release from the Obligation to Suspend the Proceedings for

the Chosen Court
The first Green Paper proposal would release the court specified in a juris-
diction agreement from the obligation to suspend its proceedings in a lis pendens
situation. If this proposal were adopted, the incentive for either party to “rush
to the courthouse” to file a petition and ensure that their favoured court is
seized of the proceeding first would be eliminated. A party could no longer
block litigation proceedings in the court specified in the jurisdiction agreement.
If the lis pendens rule were suspended for proceedings held in a court speci-
fied in a jurisdiction agreement, however, there would be no rule governing
the relationship between the two proceedings. Simply suspending the lis pen-
dens rule in these cases would increase the likelihood of parallel proceedings
and irreconcilable judgments. In any situation where the validity of a juris-
diction agreement may be disputed in a court other than the court agreed
to by the parties, there would be two proceedings pending at the same time
about which court has jurisdiction. The correct solution must acknowledge
the right of the court designated by a jurisdiction agreement to independently
determine whether or not it has jurisdiction and also determine the validity of
the jurisdiction agreement itself. Hence the first Green Paper proposal is dis-
advantageous because it allows for multiple concurrent proceedings, which the
Regulation is intended to prevent.

2. Reversal of the Obligation to Suspend Proceedings

The second Green Paper proposal would reverse the obligation of courts to
suspend litigation proceedings. If more than one court is seized of the pro-
ceedings and one of these courts is assigned jurisdiction over the matter by a
jurisdiction clause, then the assigned court must assess the validity of the juris-
diction clause, while other courts must stay their proceedings, even if they are
seized of them first. This solution was proposed to the ECJ during the Gasser
proceedings by the UK government as a way to interpret the Regulation in
its current form, but was rejected by the ECJ.82 In the current debate about
amending the Regulation, the House of Lords again favoured this solution, but
this time as a proposal for amendment.83

82
Gasser v MISAT, supra n 23, para 33; Opinion of AG Légér in Gasser, supra n 38, para 73; the
AG rejected this suggestion by arguing that this would create a possibility for abusive behav-
iour the other way round, that is to say that one of the parties could allege that there is a valid
jurisdiction agreement and thereby bring a claim before the court allegedly designated by this
jurisdiction clause. This argument is not, however, convincing as it is easier to determine that
there is no jurisdiction agreement in the contract rather than to verify if an existing agreement
is valid.
83
Report of the House of Lords Report on the Green Paper (hereinafter the “House of Lords
Report”) http://www.publications.parliament.uk/pa/ld200809/ldselect/ldeucom/148/14802.
htm (last accessed 31 March 2010), para 68.
December 2010 Enforcement of Jurisdiction Agreements under Brussels I 582

The primary advantage of the second proposal is that a clearly defined rule
pertaining to the jurisdiction of the courts would still exist, permitting only
one pending court proceeding leading to one decision at one time. This pro-
posal closely fits the general purpose of the Regulation and the original intent
of the lis pendens rule, which is to reduce the risk of parallel proceedings lead-
ing to conflicting legal outcomes. The rationale offered by the UK government
for this solution was that, in ruling on the validity of a jurisdiction clause, “it
will be necessary to apply the substantive law of the Member State in whose
territory the designated court is situated”.84 Although the substantive law of
the chosen forum may not always govern the legal proceedings arising in that
forum, in many cases it would. For another law to govern, the parties would
need to explicitly choose a different law governing the choice-of-court clause in
accordance with Article 3 of the Rome I Regulation, or the legislative param-
eters of Article 4 of Rome I Regulation would have to prevail. For reasons
of procedural economy it would be beneficial if the court specified in a juris-
diction clause could verify the clause’s validity according to its own law. Doing
so would render the process of obtaining external expertise from foreign law-
yers entirely unnecessary. The Green Paper discredits this solution by asserting
that in cases where the jurisdiction clause proves invalid, a party would have
to establish its invalidity in the designated court first, before being able to seize
another competent court.85 Such a scenario is certainly disadvantageous and a
mirror image of the current legal situation. Nonetheless, to respect the prin-
ciple of party autonomy, the presumption employed should favour the validity
of jurisdiction clauses, with invalidity as the exception to the rule.
The Green Paper offers another proposal to confront this problem: using
a standard form for choice-of-court agreements.86 A standard form would be
incapable of solving the problems that arise from the Gasser decision because
it would provide no relief to the victim of a “torpedo” claim.87 A standard
form would significantly reduce the risk that the validity of a choice-of-court
agreement would be contested, would provide legal certainty to the parties, and
would also parallel the reversal of the obligation to suspend proceedings.

3. Exception of the Lis Pendens Rule for Parallel Proceedings

in Combination with a Petition for (Negative) Declaratory
Relief
The Green Paper proposes the possibility of excluding proceedings from the
lis pendens rule where parallel proceedings have arisen and one seeks a decision

84
Gasser v MISAT, supra n 23, para 32.
85
Green Paper, supra n 3, 5.
86
Ibid, 5; see already Heidelberg Report, supra n 5, 197.
87
Heidelberg Report, ibid, 198.
583
Provisional Measures in the “Brussels I” Review
Journal of Private International Law Vol. 6 No. 3

on the merits while the other seeks negative declaratory relief.88 This proposal
would address the threat of torpedo claims and cases where one party pursues
an abusive claim. Few cases would be excluded from the lis pendens rule and
Article 27 under this solution since not all cases of multiple proceedings entail
a petition for negative declaratory relief. For all other cases, for example where
the validity of the jurisdiction agreement is disputed in a court other than the
chosen one, this third Green Paper proposal would not remedy the underlying
problem. It would simply be too narrow to modify only the interrelationship
of the lis pendens rule and a jurisdiction agreement where one party seeks nega-
tive declaratory relief.

4. Discussion
All Green Paper proposals would suspend the lis pendens rule in certain situa-
tions. The extent to which the lis pendens rule would be suspended varies by
case and proposal. Jurisdiction agreements are not the only issue regulated by
the Regulation, which differs from the Hague Convention on Choice of Court
Agreements.89 The challenge in reforming the jurisdiction rules will be striking
the right balance between preventing the proliferation of parallel proceedings
and respecting party autonomy. The optimal proposal must correct the tenuous
relationship between Articles 23 and 27 of the Regulation and maintain a bal-
ance with the other legal principles and objectives of the Regulation.
The third Green Paper proposal addresses a significant number of potentially
abusive cases that might arise, but many of these cases would go unchecked.
The most obvious solution to a “torpedo” claim is negative declaratory relief,
a decision of a court which merely ascertains the rights and responsibilities of
the parties without granting damages. A negative declaratory relief might be
sought in nearly every case. Bringing any kind of proceedings before a court
triggers the lis pendens rule in Article 27 of the Regulation; it need not be a peti-
tion for negative declaratory relief. As the only purpose of a “torpedo” claim is
to bring litigation proceedings before another court, any other cause of action
would serve just as well to bring proceedings before that court, regardless of
whether such a claim would be well founded in law or not.90 To alleviate the
problem of enforceability for only cases involving a negative declaratory relief
remedies only a part of the problematic cases which could occur as a result of
a conflict of a jurisdiction agreement with the lis pendens rule.
The first Green Paper proposal should be rejected because it permits paral-
lel proceedings and potentially conflicting judicial decisions among the different
Member States. The Regulation seeks to avoid multiple proceedings and con-

88
Green Paper, supra n 3, 5.
89
Heidelberg Report, supra n 5, 196.
90
Sander and Breßler, supra n 35, 176ff.
December 2010 Enforcement of Jurisdiction Agreements under Brussels I 584

flicting judgments, and this purpose has been definitively emphasised by the
ECJ. It is entirely plausible that a party may seek to forego the court designated
by a jurisdiction agreement in order to delay the proceedings. A party may
attempt to put forward a claim before a court that is a more convenient venue
for the party. The fact that the lis pendens rule no longer applies to cases involv-
ing multiple proceedings in multiple jurisdictions will likely not restrain such a
party from further pursuing its claim. Jurisdiction agreements are included in
many international contracts. Since there would be no other rule governing the
two claims, and national procedural instruments have been banned since the
Turner decision, numerous parallel proceedings would be left unregulated. This
would be a step backwards, rather than a clear resolution of the regulation of
jurisdiction.
The second Green Paper proposal would constitute a significant change to
the system of jurisdiction under the Regulation. Under this proposal, the lis
pendens rule would be suspended in all cases involving a jurisdiction clause.
Giving priority to the court designated by the jurisdiction clause would fully
respect the principle of party autonomy because it would provide competence
to the agreed-upon court to the exclusion of others at least until the validity
of the jurisdiction clause was decided. Excluding courts not designated by a
jurisdiction clause from instituting proceedings would be a straightforward and
manageable rule. Of course, simply because a court is granted judicial authority
over a legal matter by a jurisdiction clause does not necessarily mean that the
jurisdiction clause itself is valid. To fully respect party autonomy and encour-
age procedural economy, however, a jurisdiction clause should be presumed
valid until the court designated by that agreement decides to the contrary. This
corresponds to commercial reality where the invalidity of a jurisdiction clause
will only be established in relatively few cases. Finally, the second Green Paper
proposal is favourable because it would efficiently and comprehensively reverse
the obligation to suspend litigation proceedings, favouring the court designated
by the jurisdiction agreement rather than the court first seized, but would result
in only one proceeding, consistent with the Regulation’s general principle of
preventing parallel proceedings.

5. The Hague Convention on Choice of Court Agreements

Other legislation that must be considered when revising the Regulation as it
pertains to choice-of-court agreements is the Hague Convention on Choice of
Court Agreements.91 The Convention was completed under the Hague Confer-
ence on Private International Law in 2005.92 After several years of negotiation,
the Convention was signed by Mexico, the USA (2009) and the EU (2009),

91
Supra n 12.
92
Among others USA, Russia, China, Canada, Japan and Australia; Hartley, supra n 13, 414.
585
Provisional Measures in the “Brussels I” Review
Journal of Private International Law Vol. 6 No. 3

however, only Mexico has thus far ratified the Convention.93 The European
Community signed the Convention in April 2009,94 and consequently, this leg-
islation directly impacts choice-of-court agreements within the Community.
The relationship between the Convention and the Regulation is sensitive. The
two bodies of law are closely related, and legal authorities and practitioners
must carefully determine whether the Convention or the Regulation applies in
any given case.95 Simply put, in cases between an EU-domiciled party and a
non-EU-domiciled party that is resident in a Contracting State of the Conven-
tion, the latter applies.96 Accordingly, it is highly desirable to create consistency
between the Convention and the Regulation.
The Hague Convention contains three fundamental principles that give effect
to choice-of-court agreements and prevent parallel proceedings, which differ
form the current regime under the Regulation.97 Article 5 of the Convention
states that the court designated by a jurisdiction agreement must assume juris-
diction. Article 6 states that any other court not designated by the jurisdiction
agreement must decline to hear the case. Finally, Article 8 of the Convention
ensures that any judgment rendered by the court designated by a jurisdiction
agreement will be recognised and enforced in other Contracting States. Thus,
the Convention gives precedence to the court designated by the jurisdiction
agreement in a lis pendens situation, rather than the court first seized.98 Accord-
ingly, adopting the second Green Paper proposal would favourably resolve the
current problems arising within the Regulation’s territory, while also aligning
the Regulation more closely with the Convention, creating a more consistent
and certain legal environment for commercial parties engaged in international
transactions.99

93
The initial proposal originates from AT von Mehren (Harvard Law School) which proposed
a worldwide convention on jurisdiction and the recognition of judgments in civil and com-
mercial matters. After these negotiations reached a deadlock, the idea was born to limit the
scope of such an instruments on jurisdiction agreements. As a final result in 2005 the Hague
Convention on Choice of Court Agreements has been adopted. AT von Mehren, “Recogni-
tion and Enforcement of Foreign Jjudgments: A New Approach for the Hague Conference?”
[1994] Law and Contemporary Problems 271; P Beaumont, “Hague Choice of Court Agreements
Convention 2005: Background, Negotiations, Analysis, and Current Status” (2009) 5 Journal of
Private International Law 125, 127ff; K Woesthoff, ‘The Drafting Process for a Hague Convention
on Jurisdiction and Judgments with Special Consideration of Intellectual Property and E-com-
merce” (2005) University of Georgia School of Law, accessible at http://digitalcommons.law.
uga.edu/stu_llm/54/ (last accessed 11 August 2009).
94
Wagner, supra n 4, 1913ff.
95
See therefore Art 26 of the Hague Convention on Choice of Court Agreements, supra n 12;
Beaumont, supra n 94, 156; Kruger, supra n 13, 452; Hartley, supra n 13, 420.
96
Hartley, ibid, 421; Kruger, supra n 13, 452ff.
97
Hartley, ibid, 421.
98
LE Teitz, “The Hague Choice of Court Convention: Validating Party Autonomy and Providing
an Alternative to Arbitration” (2005) 53 American Journal of Comparative Law 543, 554; Kruger,
supra n 13, 448.
99
Heidelberg Report, supra n 5, 195ff; House of Lords Report, supra n 83, para 59.
December 2010 Enforcement of Jurisdiction Agreements under Brussels I 586

The Commission’s Green Paper suggests changes to the system of determin-

ing jurisdiction under the Regulation. The second Green Paper proposal, which
reverses the obligation to suspend proceedings in favour of the court designated
by a jurisdiction clause, is the most favourable. Despite significantly altering the
current lis pendens rule, the second proposal would prevent parallel proceedings
and re-establish choice-of-court clauses as reliable instruments for commercial
parties involved in international trade. Finally, the second proposal is compat-
ible with the Hague Convention. Under this proposal, the court chosen in the
jurisdiction agreement could render an exclusive and definitive judicial decision
without fear that its decision could conflict with or be superseded by the judi-
cial decision of another court.

6. Ancillary Proposals for Changes to the Brussels I Regulation

If the second Green Paper proposal is integrated into the Regulation, additional
amendments could also be incorporated to streamline the Regulation. Article
35(1) of the Regulation could be amended to deny recognition of a judgment
rendered by a court despite the presence of a jurisdiction clause specifying
another court.100 In the current legal environment, the fact that a judgment was
rendered in breach of a jurisdiction clause is not a sufficient reason to abandon
the obligation to recognise that judgment.101 To prevent conflicting judgments
between the court specified in the jurisdiction agreement and any other court,
which could frustrate the proceedings, the amended Regulation would need to
be strictly adhered to and courts would need to uniformly enforce jurisdiction
agreements. Denying recognition of judgments made by courts acting contrary
to the Regulation by hearing a case in spite of a jurisdiction agreement or
declining to suspend proceedings would strengthen the amended relationship
between jurisdiction agreements and the lis pendens rule.
Another lingering issue that would need to be resolved is the applicable law
for determining the validity of jurisdiction clauses. Article (1)(2)(e) of the Rome
I Regulation does not govern choice-of-court agreements. The reason for the
absence of any regulation of choice-of-court agreements in the Rome I Regula-
tion is to respect the provision in Article 23 of the Brussels I Regulation. Article
23, however, does not require the court designated by a jurisdiction agreement
to determine the validity of the jurisdiction clause according to its own law or
traditional rules. If the second Green Paper proposal is adopted, only the court
designated in the jurisdiction agreement could rule on the validity of a juris-
diction clause, and thus it would promote procedural economy for that court
to consistently apply its own law in assessing its validity unless otherwise speci-

100
Heidelberg Report, supra n 5, 200; House of Lords Report, supra n 83, para 59.
101
Gasser v MISAT, supra n 23, para 37; Nurmela, supra n 54, 131ff.
587
Provisional Measures in the “Brussels I” Review
Journal of Private International Law Vol. 6 No. 3

fied by the parties.102 This solution would also align the Regulation with the
Hague Convention, since under Articles 5(1) and 6(a) of the Convention the
law of the court chosen by the parties in the jurisdiction agreement is applied
to determine the validity of the jurisdiction clause.103

PART IV

F. CONCLUSION

The Brussels I Regulation adopts a unique approach to the concept of juris-

diction based on firm rules of jurisdiction and less judicial discretion on whether
or not to hear a case.104 Contrastingly, the English common law system has less
firm rules of jurisdiction and allows more judicial discretion on whether or not
to hear a case. Due to the interaction between Article 23 of the Regulation,
the lis pendens rule in Article 27 of the Regulation, and the Gasser decision, it
has become apparent that there are significant obstacles to the enforcement of
jurisdiction agreements. To solve these enforcement problems, the jurisdiction
rules of the Regulation should be amended to reverse the obligation to sus-
pend proceedings in cases where there is a court designated by an exclusive
jurisdiction clause, granting to that court the exclusive right to determine the
clause’s validity. This solution is fully consistent with the Regulation, providing
firm jurisdiction rules for courts to follow in lieu of relying on judicial discre-
tion to guide cases to the appropriate forum. To truly respect the autonomy
of the commercial parties, court competence should be established by a juris-
diction agreement where one exists. The awarding of damages alone, which
brings along significant difficulties in practical application and may also lead
to multiple conflicting judgments, is plainly insufficient to resolve these issues.
By contrast, the second Green Paper proposal, as demonstrated in this analysis,
promotes the principle of legal predictability and prevents parallel proceed-
ings and irreconcilable judgments, factors that are fully compatible with the
Regulation. Lastly, adopting this solution would promote the free movement
of judgments within the European Community. As a result, maximum legal
benefits would be conferred to the citizens of the European Judicial Area as a
consequence of mandatory judicial co-operation among European courts.

102
Dickinson, article on www.conflictoflaws.org, supra n 56.
103
Heidelberg Report, supra n 5, 160.
104
Dutta and Heinze, supra n 60, 432.