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Relationship Between Bir And English Rules Notes

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RELATIONSHIP BETWEEN BRUSSELS 1 REGULATION AND ENGLISH NATIONAL RULES Forum Non Conveniens and the Brussels Regulation 1) Where national jurisdiction derives from national law (pursuant to Article 4), courts can stay in favour of non-Member States 2) Where national jurisdiction derives from Art 2 BIR, courts cannot stay in favour of non-Member States on basis of forum non conveniens

1. Owusu v Jackson [2005] (ECJ)

1. English courts had previously thought that stay was possible where they had Art 2 jurisdiction

2. Re Harrods (Buenos Aires) [1992]

2. NB may still stay in favour of Member States (Art 27+28) i)

Alternative Bases of Jurisdiction

a)

Article 5

1. Reasoning in Owusu subsequently applied where court had jurisdiction under Article 5(6)

1. Gomez v Gomez-Moche Vives [2008]

b) Article 23

1. Suggested that Owusu reasoning applies where court has exclusive Art 23 jurisdiction

1. Equitas Ltd v AllstateInsurance [2008]

2. Skype Technologies v Joltid Ltd [2009]

2. However doubted whether Owusu applies where court has non-exclusive Art 23 jurisdiction.

1. Antec International v Biosafety USA [2006]
Fentiman

1. Surely argument with Article 23 is same as that for Article 5

1. i.e. where court is seised under Article 23, it is just as seised as it is under Article 2

2. Could be argued that as Art 2 is the 'kingpin' jurisdiction, Owusu is a special case

1. However this argument unlikely to get very far ii) Prior Proceedings in Third State No Stay

1. Irish court held it had no power to stay proceedings where it had BIR jurisdiction even though parallel proceedings were taking place in a non-Member State

1. Goshawk Dedicated Life v Life Receivables Ireland [2008] (Irish Case)

2. This approach followed in subsequent English case

1. i.e. stay is done on forum non conveniens grounds

2. thus rationale behind Owusu applies equally

3. Catalyst Investment Group v Lewinsohn [2010]
Stay

1. Alternatively, has been held that English court has discretion to stay where there are pending parallel proceedings in a non-Member State

1. Lucasfilm v Ainsworth [2009] (obiter)

2. JKN v JCN [2011]

2. Catalyst has been expressly disapproved in recent case

1. Ferrexpo [2012]

3. Hard to see how ECJ will JK/Ferrexpo to stand. Contrary to teleological approach. iii) Jurisdiction Clause in Favour of Third State

1. Held that court may stay proceedings where there is jurisdiction clause in favour of a non-Member State

1. certainly where clause is exclusive, though possibly also where clause is nonexclusive

2. Konkola Copper Mines v Coromin [2005] (obiter)

3. Winnetka Trading Corp v Julius Baer International [2009] (ratio)

2. Reasons given: 1) Owusu concerned doctrine of forum non conveniens

1. however where court stays on basis of jurisdiction clause, forum non conveniens doctrine not in play (thus Owusu cannot apply)

2. Winnetka [2009]
2) Possibly supported by Schlosser Report

3. Konkola Copper Mines [2005]

3. This proposition perhaps supported by ECJ case law.

1. Coreck Maritime [2000] (ECJ) iv) Article 22

1. Held that court may stay proceedings in situations where Art 22 has reflexive effect

1. Ferrexpo v Gilson Investments [2012]

2. This decision reached in context of validity of company resolutions

3. However seems reasoning also applicable in relation to immovable property

1. English courts traditionally believe they have no subject-matter jurisdiction in relation to foreign land

1. British South Africa Co [1893]

2. Thus technically discretion to grant a stay does not come into play whatsoever Issues

1. Ultimately answer to above questions depends on what interpretation is given to Owusu.

1. And ECJ has not been called upon to answer any of these questions. i)

Alternative Interpretations

2. Alternative interpretations of Owusu are: 1) ECJ objects to any use of national law for staying of actions 2) ECJ objects to use of discretion (i.e. forum conveniens) 3) ECJ objects to use of national law where this does not reflect provisions of Regulation

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