C-129/92

2. On 29 January 1988 the defendants were found liable by the High Court of Justice of St Vincent to repay a loan amounting to nine million Swiss francs which had allegedly

3. On 11 July 1989 the plaintiff applied to a * Original language: German. court in Milan for an order declaring the St 1 — As is well known, this State, a member of the Common­ wealth, is situated in the eastern part of the Caribbean (the Vincent judgment enforceable. The defen­ main island, St Vincent, lies approximately 160 km west of dants pleaded before the Italian court inter Barbados and about 130 km to the north cast of Grenada). In 1990 its estimated population was 116 000, covering a total alia that the plaintiff had obtained the judg­ area of 388 square kilometres (The Neu· Encyclopxdia Britannica, Micropæedia, Volume 10, 15th edition, Chicago el ment at issue by fraud. Those proceedings al. 1992). (hereinafter referred to as 'the Italian

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2 — The concept of 'enforcement proceedings' signifies, both here and hereafter, proceedings for a declaration that a judg­ ment of a foreign court is enforceable, not execution pro­ 3 — Mr Nano is the person who claims to have negotiated the ceedings, that is to say, proceedings for the compulsory alleged loan agreement with the defendants and to have enforcement of a judgment (for further details, see paragraph handed over the money; Mr Layne is one of the directors of 15). the plaintiff.

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say, judgments not given in England or — At common law, proceedings may be Wales) may be recognized and enforced: 4 brought in certain cases on the basis of a foreign judgment. These are ordinary civil proceedings, the special characteris­ tic of which is that the action is based not on the original claim (e.g. the claim for repayment of a loan) but on the foreign — Under section 9 of the Administration of judgment ordering the defendant to make Justice Act 1920, judgments of the courts payment. 5 of certain States (including St Vincent and the Grenadines) ordering the defendant to pay a sum of money may be recog­ nized in England by means of entry in a register. The effect of such recognition is that the foreign judgment can in principle be enforced in the same way as a judg­ ment given by an English court.

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The court also enjoys a certain measure of The second order (hereinafter referred to as discretion with regard to the way in which 'the registration order') ordered the St such interlocutory proceedings are orga­ Vincent judgment to be registered immedi­ 10 nized. This is evident from the decision in ately pursuant to the Administration of Jus­ the case of Société Coopérative Sidmetal v tice Act 1920, but also gave liberty to the 1 Titan International Ltd. 1 That case con­ defendants to apply to set aside the registra­ cerned the registration in England of a Bel­ tion if they had grounds for doing so. The gian judgment. The Belgian undertaking, High Court further ordered execution on the which had been unsuccessful in the initial judgment thus recognized should not issue proceedings, had served in those proceedings until after the first hearing of the main pro­ a third party notice on an English company ceedings or, if an application were made by (its supplier). In the proceedings before the the defendants to set aside the registration, court in London the English company until such application had been disposed of. asserted that the Belgian court had not had jurisdiction in the matter. The English court ordered a trial of that question, in which the English company should stand as plaintiff.

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1920, a judgment may not be registered in appeal was dismissed by the House of Lords 13 5 England. on 1 April 1992. 1 With regard to the defen­ dants' appeal, the national court took the view that it was necessary to seek a ruling from the Court of Justice.

11. The plaintiff and the defendants appealed against those decisions (the defendants against the decision of 19 July and the plain­ 13. The House of Lords has consequently tiff against the decision of 9 November referred the following questions to the Court 1990). The Court of Appeal dismissed the 1 of Justice for a preliminary ruling: appeals on 27 March 1991. 4It held that the Brussels Convention had no application to proceedings for the recognition and enforce­ ment of the judgments of non-contracting States and in particular to proceedings under the Administration of Justice Act 1920. Even 1) Does the 1968 Brussels Convention on if the Brussels Convention did apply, Jurisdiction and the Enforcement of Articles 21 and 22 were not applicable to the Judgments in Civil and Commercial Mat­ present case. ters ('the 1968 Convention') have any application to proceedings, or issues aris­ ing in proceedings, in Contracting States concerning the recognition and enforce­ ment of the judgments in civil and com­ mercial matters of non-contracting The Court of Appeal further confirmed that States? there should be a trial of the question whether the St Vincent judgment had been obtained by the plaintiff by fraud.

2) Do Articles 21, 22 or 23 of the 1968 Con­ vention, or any of them, apply to pro­ ceedings, or issues arising in proceedings, 12. The plaintiff and the defendants appealed which are brought in more than one to the House of Lords against those parts of Contracting State to enforce the judg­ the decision of the Court of Appeal which ment of a non-contracting State? were not in their favour. The plaintiff's

16. The House of Lords seeks to know, first, whether the Brussels Convention has any Preliminary observation application to proceedings for a declaration as to the enforceability in a State which is a party to the Brussels Convention of a judg­ ment given in a non-contracting State (see the first question referred for a preliminary ruling). Following on from this is the further question whether — and if so, how — the 14. Before considering the questions referred provisions of the Brussels Convention con­ by the House of Lords, I will attempt to cerning lis pendens and related actions define the problems needing to be dealt with (Articles 21 to 23) are to be applied where in this case. This appears to me all the more concurrent applications are made in more necessary since at the hearing before this than one Contracting State for a declaration Court the defendants' representative alleged as to the enforceability of a judgment of a that the Commission and the United King­ non-contracting State (see the second and 16 dom were guilty of serious misunderstand­ third questions referred for a preliminary ings, and consequently denied that the argu­ ruling). ments of those two parties were of relevance to these proceedings.

Brussels Convention (or some of them) can The judgment of the House of Lords refer­ apply to 'issues' arising in proceedings for ring the questions for a preliminary ruling the recognition and enforcement of a judg­ refers throughout to 'the English enforce­ ment of a non-contracting State. ment proceedings' and 'the Italian enforce­ 22 ment proceedings'. Since the Italian civil proceedings are mentioned only once in the 23 judgment but are not otherwise referred to, it might be assumed that the House of Lords does not wish the Court to deal with The significance of this in relation to the that aspect in its answer to the questions present case is as follows: the English courts referred for a preliminary ruling. have ordered that there should be a trial of the issue whether the plaintiff obtained the St 19 Vincent judgment by fraud. That question is also occupying the Italian court, which has to decide whether to declare the judgment However, for the sake of completeness I pro­ enforceable in Italy. Does this mean that one pose briefly to consider that factor as well. of those courts must decline jurisdiction in favour of the other court or stay the pro­ ceedings before it pursuant to the provisions of Articles 21 to 23 of the Brussels Conven­ tion until the other court has decided the question needing to be resolved? In the fol­ 19. Finally, it should be borne in mind that lowing paragraphs I propose to deal with the English enforcement proceedings are for both aspects of the questions referred for a a declaration as to the enforceability of a preliminary ruling. judgment pursuant to the provisions of the Administration of Justice Act 1920. How­ ever, the questions referred for a preliminary ruling by the House of Lords relate gener­ ally to proceedings concerning 'the recogni­ tion and enforcement of the judgments in 18. In their written observations, and par­ civil and commercial matters of non- ticularly in the oral procedure before the contracting States'. Consequently, I propose, Court, the defendants have asserted that the in setting forth my arguments, to refer ini­ question of possible fraud was also raised in tially to the actual circumstances of this case 20 the Italian civil proceedings. It also appears but thereafter to suggest to the Court an to have been argued by the defendants in the answer to the preliminary questions which is proceedings before the High Court and the applicable to all proceedings in which it is 21 Court of Appeal. sought to enforce a judgment of a non- contracting State in Contracting States which are parties to the Brussels Convention.

Applicability of the Brussels Convention such proceedings. A declaration of enforce ability enables the enforcement of a foreign judgment to take place in a given Contract ing State. Consequently, it must of necessity be reserved to the organs of the State in Permissibility of double execution which the judgment is to be enforced. According to the second paragraph of Article 34 in conjunction with Article 27(1) of the Brussels Convention, an application 20. The parties which have taken part in the for a declaration of enforceability may be proceedings before this Court are agreed that refused inter alia where recognition of the a decision by which a court in a Contracting judgment would be 'contrary to public State recognizes and declares enforceable a policy in the State in which recognition is decision given in another State cannot itself sought'. Of course, that concept does not be recognized and declared enforceable pur have exactly the same meaning in each Con suant to Title III of the Brussels Convention tracting State. Consequently, in the example in another Contracting State. given above, the French courts' decision to declare the Belgian judgment enforceable in France cannot in any way bind the Spanish courts. If the judgment is also to be enforced in Spain, the judgment creditor must apply

22. The same applies in relation to the recog to Article 31 of the Brussels Convention nition and enforcement of judgments of the 'when. . . the order for its enforcement has courts of non-contracting States. A decision been issued there'. The effects of that decla by a Contracting State whereby a judgment ration of enforceability are restricted to the of a non-contracting State is declared State in whose courts that declaration has enforceable takes effect only in that Con

Schiedssprüchen und ausländischen Gerichts- entscheidungen, IPRax 1985, pp. 141, 143; J. Kropholler, III of the Brussels Convention does not Europäisches Zivilprozeßrecht, 3rd edition, Heidelberg 1991, Art. 25, paragraph 16. apply to those proceedings. This means, in

particular, that the decision of Contracting another Contracting State is also to be found State A by which the judgment of the non- in the virtually unanimous opinions of legal contracting State is declared enforceable in writers. that Contracting State cannot be enforced in Contracting State B pursuant to Article 31 et seq. of the Convention. 23. In my view, this view also applies where the judgment of the non-contracting State is not declared enforceable as such in the Con tracting State but is made the basis of civil

Septem- ber 1968, JZ 1977, pp. 145, 148; by the same author. ment without difficulty in Contracting State Internationales Zivilprozeßrecht, Cologne 1987, p. 472 (paragraph 2310); R. Gcimcr and R. Schutze, A by virtue of the decision obtained in Con Internationale Urteitsanerkennung, Vol. I, 1st half volume, tracting State B. I share the United King Munich 1983, p. 985; D. Martiny in:

Munchener Kommentar zur Zivilprozeßordnung, Volume 3, Munich 1992, Art. 25, para graph 10. For another view, sec R. Schutze, Die Dop- pelexequiemns ausländischer Zivilurtetle, ZZP 77(1964), p. 287 et seq.; Dy the same author, RIW 1984, p. 734 et seq.; tor a doubting view, sec F. Jucngcr, La Convention de Bruxelles du 27 septembre 1968 et la courtoisie

a Contracting State by which a judgment 27 — For confirmation of this, sec P. Gothot and D. Hollcaux, !oc. cit. (footnote 26 above), p. 135 (paragraph 239); J. given in another State is declared enforceable Kropholler, loc. cit. (footnote 24 above), p. 259 (paragraph cannot itself be declared enforceable in 16); H. Schack, loc. cit. (footnote 26 above), p. 340 (paragraph 936). For a different view, sec S. O'Mallcy and A. Layton, loc. cit. (footnote 26 above), p. 680 (paragraph 25.36). A conciliatory view is expressed by G. Droz, loc. cit. (footnote 25 above), p. 271 (paragraph 437), footnote 1 (who submits that a decision regarding an 25 — This view is endorsed in Competence judiciaire et effets des .irtio judicati may only be enforced in another Contracting jugements dans le marché commun bv G. Droz, Paris 1972, State if it has been given in compliance with the jurisdic­ p. 270 et seq. (paragraph 437). tional provisions of the Brussels Convention).

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described above, of circumventing the rules situation arising where a Contracting State applying to recognition but would also — as refuses to recognize a decision of another will be shown hereafter — throw into disar­ Contracting State on account of its irrecon­ ray the jurisdictional system laid down in the cilability with a decision given in a dispute 28 Convention. between the same parties in the State in which recognition is sought.

Scope of the Brussels Convention

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The wording of Artide 1 that the proceedings in civil and commercial matters referred to therein must concern claims in civil or commercial law (for example a claim for repayment of a loan), but not proceedings for the recognition and 25. The first sentence of the first paragraph enforcement of judgments. 30 It is true, how­ of Article 1 of the Brussels Convention pro­ ever, that the wording of Article 1 does vides that the Convention 'shall apply in indeed admit of the interpretation advanced civil and commercial matters whatever the by the defendants. In that regard, it should nature of the court or tribunal'. Article be noted in particular that Article 1 forms 1 goes on to list various areas of law which Title I of the Brussels Convention, which do not fall within the scope of the Conven­ defines its scope. Since Title III of the Con­ tion; these are of no relevance to the present vention governs the recognition and enforce­ case. ment of judgments, the view might be taken that analogous proceedings fall within the 31 scope of the Convention.

26. The defendants point out that the scope of the Brussels Convention was intended to be as wide as possible. The Jenard Report states in that connection: The scheme and objectives of the Convention

'... the solution adopted implies that all liti­ gation and all judgments relating to contrac­ 28. In my view, however, it is apparent from tual and non-contractual obligations which the schematic context and objectives of the do not involve the status or legal capacity of Brussels Convention that it is not applicable natural persons, wills or succession, rights in to proceedings of the kind with which we property arising out of a matrimonial rela­ are here concerned. In that connection, I tionship, bankruptcy or social security must propose initially to deal below only with fall within the scope of the Convention, and proceedings for the recognition and enforce­ that in this respect the Convention should be 29 ment of judgments of non-contracting interpreted as widely as possible.' 32 States.

31. The Commission has in addition rightly 30. It should be pointed out, first of all, that pointed out that the Brussels Convention according to Article 25 of the Convention, does not affect the right of Contracting 'judgment' means, for the purposes of the States to conclude agreements with non- Convention, any judgment given by a 'court contracting States concerning the recognition or tribunal of a Contracting State'. As and enforcement of judgments. Whether this 34 regards the relationship between such judg­ results from Article 57, to which the Com­ ments and the judgments of non-contracting mission refers, or from other provisions and States, Article 27(5) contains an important considerations is a question we need not go 35 indication. According to that provision, a into here. At all events, it is clear in the judgment of a Contracting State may not be final analysis that the recognition and recognized in another Contracting State enforcement of judgments of non- contracting States are matters reserved to the respective laws of the Contracting States (including any existing agreements with non- 'if the judgment is irreconcilable with an ear­ contracting States). lier judgment given in a non-contracting State involving the same cause of action and between the same parties, provided that this latter judgment fulfils the conditions neces­ That interpretation also accords with the sary for its recognition in the State Convention's objective of simplifying the addressed.' formalities governing the reciprocal recogni­ tion and enforcement of judgments of courts or tribunals, as laid down in Article 220 of the EEC Treaty (which is the legal basis for That provision shows, first, that the Conven­ the Brussels Convention) and in the pre­ tion itself is based on the assumption that amble to the Convention. As I have already there are cases in which recognition of a stated, decisions whereby a judgment is rec­ judgment given on the basis of the Conven­ ognized and declared enforceable in one tion may be refused in another Contracting Contracting State may not be declared State on the ground that it is irreconcilable enforceable in another Contracting State. with a judgment given in a non-contracting State. Second, the reference in that provision to the conditions necessary for its recogni­ 33 — See also in this regard G. Droz, loc. cit. (footnote 26 above), tion in the State addressed shows that the p. 334. question of the recognition of judgments 34 — Article 57 provides that the Brussels Convention is not to affect any recognition and enforcement conventions in rela­ given in non-contracting States is intended to tion to particular matters. be reserved to the respective laws of the 35 — Given that Article 57 of the Convention refers to 'particular matters', it is possible that that provision does not cover Contracting States. The Brussels Convention bilateral treaties of a general nature concluded between merely governs the consequences arising States. However, the previous version of Article 58 shows that the Brussels Convention (apart from the exception from the existence of a recognized or recog­ described in Article 58) does not affect such treaties either.

Consequently, the application of the Con­ 33. Furthermore, attention should be drawn vention to such proceedings would be of no to the connection between Title II ('Jurisdic­ relevance in that regard to the achievement tion') and Title III ('Recognition and of the aforesaid objective. Enforcement') of the Brussels Convention. The simplified procedure laid down by the Convention for the enforcement of the judg­ ments of one Contracting State in another 32. On the other hand, the reference by the Contracting State is 'the counterpart of Title Commission to the Court's judgment in the II'. 38 The establishment of rules concerning Hagen case seems to me to be less significant jurisdiction and of the procedural provisions in the present context. In that judgment, the consequent thereon (particularly Articles Court stated inter alia: 21 to 23) serves to facilitate the recognition and enforcement of the decisions given in the respective proceedings. As I have already stated, however, a decision given in a Con­ 'It should be stressed that the object of the tracting State whereby a judgment of a non- Convention is not to unify procedural rules contracting State is declared enforceable but to determine which court has jurisdic­ takes effect only in the territory of that Con­ tion in disputes relating to civil and commer­ tracting State. Such an enforcement decision cial matters in intra-Community relations cannot itself be declared enforceable in 36 (...). ' another Contracting State. 39 Consequently, no irreconcilability can ever arise between such decisions given in more than one Con­ The Commission appears to be seeking to tracting State. If the judgment given in the infer from that statement and from the non-contracting State is declared enforceable wording of Article 220 of the EEC Treaty in Contracting State A but enforcement is that the Convention is not applicable to pro­ refused in Contracting State B, the result is ceedings having a connection with non- merely that the judgment creditor can contracting States. I have reservations about enforce in Contracting State A but not in subscribing to that view. However, it does Contracting State B. not appear necessary to me to go further into that question here. First, it can hardly be denied that there exists in the present case the intra-Community link which is necessary according to the view mentioned, since the recognition and enforcement of the St Vincent judgment is a matter with which the However, irreconcilability could of course courts of two Contracting States are con­ arise between judgments given in different cerned. Second, the Court will probably Contracting States with regard to the rela­ have an opportunity of considering this tionship between such an enforcement deci­ question in the 'Hårrods' case now pending sion and a decision given on the basis of the before it. 37 Convention (in the Italian civil proceedings, for example) (see paragraph 60 below).

35. However, no such jurisdictional provi­ 37. In the case of AS-Autoteile Service v 42 sions exist. Article 2 of the Convention pro­ Malhé the Court had an opportunity for vides that persons domiciled in the territory the first time to state its view on the inter­ of a Contracting State are in principle to be pretation of that provision. The question at sued in the courts of that State. Clearly, that issue in that case was whether actions to jurisdictional rule is not framed to cover oppose enforcement pursuant to Paragraph proceedings for the recognition and enforce­ 767 of the German Code of Civil Procedure ment of judgments given in non-contracting fall within Article 16(5). The Court answered States. The adoption of a contrary view that question in principle in the affirmative. would mean that such a judgment could in principle be enforced only in the State in which the debtor is domiciled. However, not even the defendants are in any doubt that a judgment creditor is entitled to choose the 38. The decision in the case of Reichert and 43 State in which he wishes to enforce the judg­ Kockler, concerning the French law con­ ment obtained by him, provided of course cept of an actio pauliana, is much more illu­ that the State in question recognizes that minating. In its judgment the Court stated: judgment. The United Kingdom rightly points out in that regard that there may cer­ tainly be cases in which a judgment is 40 enforced in more than one State. 'In that regard, it is necessary to take into account the fact that the main reason for giv­ ing exclusive jurisdiction to the courts of the

The Court went on to quote the Jenard 40. Even if the foregoing is not accepted and Report, which states that the expression it is sought instead to place a wide interpre­ 'proceedings concerned with the enforce­ tation on the expression 'proceedings con­ ment of judgments' means those proceedings cerned with the enforcement of judgments', which can arise from 'recourse to force, con­ Article 16(5) could not be applied here. straint or distraint on movable or immovable According to the definition contained in property in order to ensure the effective Article 25, the term 'judgment' means, for implementation of judgments and authentic the purposes of the Convention, only a judg­ instruments'. 45 ment given by a court or tribunal of a Con- 49 tracting State, whereas the present case concerns the enforcement of a judgment of a 50 non-contracting State.

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tracting States in such cases is to be deter­ 'Consequently, the jurisdictional rules dero­ mined by analogy with Articles 57 and 4 of gating from that general principle may not the Convention. give rise to an interpretation going beyond the hypotheses envisaged by the Conven­ 54 tion.'

54 — Ibid, (footnote 53 above), paragraph 14 (the official English translation is not yet available). 51 — Article 4 provides that if the defendant is not domiciled in a 55 — Such a jurisdictional rule would have to apply generally to Contracting State, the jurisdiction of the courts of each cases concerning declarations as to the enforceability of Contracting State is in principle to be determined by the judgments given in non-contracting States. Consequently, it law of that State. goes without saying that Article 4 of the Convention 52 — Loc. cit. (footnote 29 above), p. 15. — which applies only to defendants who are not domiciled in a Contracting State — cannot fulfil that role. 53 — See the judgment in Case C-26/91 Handte [1992] ECR I- 3967, paragraph 13. 56 — See paragraph 54 et seq. below.

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57 — See the supporting view expressed by R. Gcimer in EUGVÜ and Aufrechnung: Keine Erweiterung der internationalen Entscheidungszustandigkeit — Aufrechntings- verbot bei Abweisung der Klage wegen internationaler That view was argued very eloquently by the Unzuständigkeit, IPRax 1986, pp. 208, 209; D. Lasok and P. Stone, loc. cit. (footnote 50 above), p. 197. defendants' representative in the oral proce­ 58 — Sec paragraph 9 of the observations of the United Kingdom dure before the Court. However, it should ('a somewhat anomalous provision') and A. Struycken, The rules of jurisdiction in the EEC Convention on jurisdiction not in my view be followed. and enforcement of judgments in civil and commercial mat- ters, in: Netherlands International Law Review 1978, pp. 354, 360 ('Its proper place in the Convention is rather, as an Article 25A, at the beginning of Title III'). 59 — See the supporting view expressed by I. Schwander in Die Gerichtszuständigkeiten un Lugano-Ubereinkommen, in: I. Schwander (editor), Das Lugano-Ubereinkommen, pp . 61 , 92 (on Article 16(5) of the Lugano Convention, the con­ 49. It should be borne in mind, first, that the tents of which arc the same). application of the jurisdictional provisions of 60 — See G. Droz, loc. cit. (footnote 25 above), p. 107 (paragraph 162). the Brussels Convention to individual issues

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or, more precisely, to proceedings concerning in question, although enforcement of the individual issues would have inappropriate judgment of the non-contracting State is to results. take place in Italy and in England.

52. The question whether these proceedings constitute under English law an integral part of the enforcement proceedings, or whether This cannot, however, be right. The facts of they amount instead to separate proceedings, the original case need be altered only slightly is of course a matter to be decided by the for the absurdity of this solution to become English courts alone. However, the question apparent: were the defendants domiciled not whether they constitute proceedings within in Italy but in France, for example, the French courts would have to decide the issue

62 — 'The answer to this, in my view, is that no provision is made as to such a hybrid creature in the convention' (unpublished transcript of the judgment of 19 July 1990, 61 — As to Article 18, see footnote 41 above. p. 10).

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The second question

56. That case concerned a dispute between a number of reinsurance undertakings domi­ ciled in the Community and an insurance undertaking domiciled in the United States. 54. In asking its second question, the House The American undertaking brought an of Lords seeks to know whether Articles 21, action against the reinsurers before the Paris 22 or 23 are applicable to proceedings of the kind with which we are here concerned. That question needs to be considered in the light 63 — Case C-351/89 [1991] ECR I-3317.

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'(That Section) is intended, in the interests of the proper administration of justice within the Community, to prevent parallel proceed­ ings before the courts of different Contract­ ing States and to avoid conflicts between decisions which might result therefrom. 57. The Court pointed out that Article Those rules are therefore designed to pre­ 21 contains no reference to the domicile of clude, in so far as possible and from the out­ the parties to a dispute and concluded: set, the possibility of a situation arising such as that referred to in Article 27(3), that is to say the non-recognition of a judgment on account of its irreconcilability with a judg­ ment given in proceedings between the same parties in the State in which recognition is sought. It follows that, in order to achieve 'Consequently, it appears from the wording of Article 21 that it must be applied both where the jurisdiction of the court is deter­ mined by the Convention itself and where it 64 — Ibid, (footnote 63 above), paragraph 14.

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those aims, Article 21 must be interpreted referred to could no longer be recognized, broadly so as to cover, in principle, all situa­ since it would be irreconcilable with the tions of lis pendens before courts in Con­ English enforcement decision. A situation tracting States, irrespective of the parties' would then arise such as the Brussels Con­ 65 domicile.' vention seeks to prevent. In order to avoid this risk, the (direct or analogous) applica­ tion of Articles 21 to 23 is indeed conceiv­ able.

65 — Ibid, (footnote 63 above), paragraph 16. A similar statement is to be found in the judgment in Case 144/86 Gtibisch Maschmenfabrik v Palumbo [1987] ECR 4861 (paragraph 8). See also the judgment in Case C-220/88 Dumez France 62. In my view, however, it is not necessary and Tracoba [1990] ECR I-49, paragraph 18. in the present case to consider further the 66 — See P. Gothot and D. Holleaux, loc. cit. (footnote 26 above), p. 123 (paragraph 217); G. Muller in Der internationale Rechtsverkehr in Zivil- und Handelssachen bv A. Bulow, K.-H. Bockstiegel, R. Geimer and R. Schutze, Munich (as at 1991), p. 606/169; H. Gaudemet-Tallon, Revue critique de droit international privé 1991, pp. 769, 69 — That provision was added to Article 57 of the Convention, 774. becoming paragraph 2 thereof, pursuant to the Accession Convention of 26 May 1989. 67 — This also appears to be the view expressed by A. Briggs in The Law Quarterly Review 1991, pp. 531, 534; he calls for 70 — As to Article 57, see footnote 34 above. a 'purposive construction' of the Convention. 71 — Article 20 provides that where a defendant domiciled in a 68 — Since the Italian enforcement decision cannot itself be rec­ Contracting State docs not enter an appearance to the pro­ ognized and enforced in other Contracting States, the deci­ ceedings and the court's jurisdiction is not derived from sion in question could — according to the view advanced any oilier provision of the Convention, the court must here — only be that of the court seised of the Italian civil declare of its own motion that it has no jurisdiction. proceedings. 72 — Loc. cit. (footnote 29 above), p. 140 (paragraph 240).

construction advanced by the defendants. In without there being any need to apply the order for Articles 21 to 23 to be applicable at provisions of the Convention in respect of lis all, it is in my view necessary for the pro­ pendens and related actions. In my view, the ceedings in question to be covered by the present case illustrates this. Convention, at least as regards their subject- matter. As I have already stated, this is not the case where enforcement proceedings are concerned. The Convention is framed to cover ordinary 'original' actions. It does not cover proceedings for the recognition and enforcement of judgments given in non- 64. As regards the enforcement proceedings contracting States. As regards individual themselves, only Article 22 might then be issues requiring to be settled in such proceed­ relevant. The English enforcement proceed­ ings, these may be regarded as proceedings ings are concerned solely with the question for the purposes of the Convention only whether the St Vincent judgment can be where they are severed from their connec­ enforced in England. Similarly, the Italian tion with the enforcement proceedings. For enforcement proceedings concern the ques­ the reasons stated above, this does not tion whether the judgment can be enforced appear to me to be appropriate. in Italy. Consequently, even on a wide inter­ pretation of Article 21, as endorsed by the 73 Court, the subject-matter of the dispute is not the same, as it is required to be by that article. The same is true of the relationship between the English enforcement proceed­ ings and the Italian civil proceedings. Here too, the subject-matter of the dispute might not be the same, within the meaning of Article 21. 63. Consequently, it is only in the alternative that I propose to consider below which of the provisions of Articles 21 to 23 might be relevant if it were assumed, contrary to the view put forward here, that those provisions were applicable to cases of this kind. It will also be shown in that connection that the argument advanced by the defendants in the 65. Article 23 is inapplicable for the same oral procedure, to the effect that a refusal to reason. Admittedly, it is in the nature of apply those provisions would result in a things for the English courts to have exclu­ 'gaping hole' in the legal protection enjoyed sive jurisdiction to decide whether to allow by them, is not persuasive. Admittedly, the enforcement to take place in England just as defendants are correct in saying that it would the Italian courts should have exclusive juris­ be inconvenient for them to have to prove in diction with regard to the question whether each Contracting State in which the plaintiff the judgment may be declared enforceable in sought to enforce the St Vincent judgment Italy. To that extent it is understandable, that the plaintiff obtained that judgment by given the circumstances, that the Commis­ fraud. However, the United Kingdom has sion should rely in its alternative submis- rightly pointed out that the resulting disad­ vantages can in many cases be offset by the application of national rules of procedure, 73 — See the judgment in Gubisch, cited above (footnote 65).

Parker LJ, who delivered the unanimous judgment of the Court of Appeal in this case, pointed out that under English law a finding by the Italian courts that the plaintiff had committed a fraud could affect the English enforcement proceedings by creating an issue 77 estoppel. It followed, in the Court of Appeal's view, that the English courts were empowered to stay the English proceedings 66. According to the first paragraph of on the question of fraud until that issue had Article 22, where related actions are brought 7 been determined in Italy. 8Following care­ before the courts of different Contracting ful reflection, the High Court had decided States, any court other than the court first not to stay the English enforcement proceed­ seised 'may, while the actions are pending at 75 ings, since, first, there was in its opinion no first instance, stay its proceedings'. For the certainty that the Italian courts would decide purposes of that provision, actions are the question of fraud at all, and, second, it deemed to be related 'where they are so took the view that no such decision could be closely connected that it is expedient to hear expected in the foreseeable future. Although and determine them together to avoid the the Court of Appeal was quite prepared to risk of irreconcilable judgments resulting from separate proceedings' (paragraph 3 of Article 22). 76 — With regard to the points of view to be taken into account here, see the considerations in respect of the third prelimi­ nary question. 77 — [1991] 4 All ER 833, p. 853 et seq. An issue estoppel means 74 — However, contrary to the view expressed by the Commis­ that a matter of fact or law determined by a foreign court sion, I remain of the view, in these alternative submissions, may not be further contested before the English courts. See that Article 16(5) is not applicable to enforcement proceed­ generally in this regard Dicey and Morris, loc. crl. (footnote ings (see paragraph 39 above). 4 above), p. 432 et seq. 75 — The second paragraph of Article 22 provides that a court 78 — 'Accordingly, in our judgment there must be a power in the other than the court first seised mav also, on the application English court to stay the trial in England of the main issue of one of the parties, decline jurisdiction 'if the law of that whether the St Vincent judgment was obtained by fraud court permits the consolidation of related actions and the pending the trial of the same issue in Italy, It could be pro­ court first seised has jurisdiction over both actions'. That ductive of great injustice to allow the issue to go ahead in provision (which is not wholly easy to comprehend) plays England when the same issue could be better tried m Italy no part in the present proceedings (see the wording of the and the Italian decision could be determinative of the issue third preliminary question) and does not therefore need to for the purposes of the English proceedings' (loc. cit. - be discussed further here. footnote 77 above - p. 855, at e and f)·

68. Within the context of these alternative The position would of course be different if observations, let us now turn to the question Article 21 of the Convention could be of which provisions could be applied to indi­ applied. It should be noted in that regard vidual issues arising in proceedings for the that, as is well known, the Court interprets recognition and enforcement of the judg­ that provision very widely. In particular, the ments of non-contracting States. In principle, judgment in the Gubisch case should be both Article 21 and Article 22 would fall to 82 borne in mind here. 81 be considered here. I will be brief in this regard, since otherwise I would have to enter the realm of speculation. It is true that the defendants have repeatedly asserted that the In that case the court second seised would question whether the plaintiff obtained the St have to decline jurisdiction of its own Vincent judgment by fraud has arisen both in motion in favour of the court first seised. the Italian enforcement proceedings and in the Italian civil proceedings. However, as the High Court and the Court of Appeal have already stated, there is not even any certainty 70. In the present case, that would mean that that the Italian courts will decide that ques­ in this respect — Iamreferring in this con­ tion at all. Consequently, it is not possible to nection only to the issue of fraud — the determine whether Article 21 or Article English courts would have to decline juris­ 22 might be applicable in the present case. It diction in favour of the Italian courts, since can only be stated in general terms, there­ there is no dispute that the latter were seised fore, that Article 21 would apply if the pro­ first. There can hardly be any doubt that this would produce a sensible result. The issue would be decided by the Italian courts, which are probably in the best position to 79 — 'In our judgment the English courts should adopt a com­ determine it: the native tongue of the most munautaire, and not a national and chauvinistic, approach important persons involved is Italian, as is to the determination of this question' (loc. cit. — footnote 76 above — p . 856 et seq.). 80 — See paragraph 76 et seq. below. 81 — Clearly, there does not exist the requisite concurrent exclu- sive jurisdiction to decide such issues which is needed in order for Article 23 to apply. 82 — Loc. cit. (footnote 65 above).

71. It is clear, though, that this result would be due only to the fact that the Italian courts were seised first. However, had the plaintiff applied to have its judgment declared Here too, therefore, we find confirmation enforceable in England or another Contract­ that Articles 21 to 23 — and the Convention ing State before those questions came before as a whole — are based on original jurisdic­ the Italian courts, then under Article tion and are not suited to proceedings for the 21 those courts would have had jurisdiction, recognition and enforcement of judgments and not the Italian courts, although the latter given in non-contracting States or to issues are much closer to the facts of the case which arising in such proceedings. are to be determined. The application of the Brussels Convention would thus result in the issue in question being indeed decided by the courts of a single Contracting State, but they would not be the courts of the Contracting State which, in terms of proximity to the subject-matter, appears almost predestined to deal with the matter. 73. Like the Commission, I am not con­ vinced by the defendants' submission, upon which they place particular emphasis, that this could result in high costs for them because of the possible multiplicity of pro­ ceedings. The very reason for the fact that there could be many sets of proceedings lies in the fact that a judgment creditor can 72. As we have already seen, Title II of the enforce, or can at least attempt to enforce, Brussels Convention lays down rules of his judgment in more than one State. jurisdiction to determine which courts should most appropriately decide the dis­ pute, taking all relevant matters into 83 — See paragraph 42 above.

— the proximity of the courts to the subject-matter of the case. 75. The decision required in the context of Article 22 of the Convention is a discretion- ary decision. It goes without saying that the circumstances of each individual case are par­ 77. Clearly, the closer the connection ticularly important here. The national courts between the proceedings in question, the must bear in mind that the aim of this pro­ more necessary it would appear for the court vision is 'to prevent parallel proceedings second seised to stay its proceedings. If other before the courts of different Contracting factors are of some relevance to the proceed­ States and to avoid conflicts between deci­ ings pending before the court first seised, it sions which might arise therefrom', as the may be appropriate for the court second Court stated in its judgment in Overseas 86 84 seised not to stay its proceedings. It would Union Insurance. It would therefore be also appear sensible, for example, for a court appropriate in case of doubt for a national to decline to stay its proceedings on the court to decide to stay its proceedings under 85 grounds that only an interim measure can be Article 22. taken in those proceedings and that there is therefore no risk of irreconcilable deci­ 87 sions. The more the proceedings are related, however, and the greater the risk of 76. Furthermore, there are three factors the courts arriving at irreconcilable decisions, which may be relevant to the exercise of the the more likely it will be that the court sec­ discretion vested in national courts by vir­ ond seised should stay its proceedings in accordance with Article 22.

C — Conclusion

80. I therefore propose that the Court should answer the questions submitted by the House of Lords for a preliminary ruling as follows:

The Brussels Convention of 27 September 1968 on Jurisdiction and the Enforce­ ment of Judgments in Civil and Commercial Matters is not applicable to proceed­ ings concerning the recognition and enforcement of judgments in civil and commer­ cial matters given in non-contracting States, nor to issues arising in such proceedings .

88 — See the judgment of the Arrondissementsrechtbank 's-Gravenhage of 1 February 1985, Sehip en Schade 1985, pp.251, 254 (Digest, I-22 B 8) and the judgment of the Danish So- og Handelsretten of 5 September 1991, upheld by the judgment of the Højesteret of 19 February 1992 (Ugeskrift for Retsvæsen 1992, p. 403 et seq.).

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