C-163/95

2. Title II of the Convention contains gen- eral and special rules governing the jurisdic-

3. In Section 8 of Title II of the Convention, * Original language: English. 1 — Convention on Jurisdiction and the Enforcement of Judg- entitled 'Lis pendens — related actions', is to ments in Civil and Commercial Matters. be found Article 21, which, as amended by

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Article 8 of the San Sebastian Convention ol which a judgment is not to be recognized 26 May 1989, 2 provides: including, in paragraph 3, the case where:

'the judgment is irreconcilable with a judg- ment given in a dispute between the same 'Where proceedings involving the same cause parties in the State in which recognition is of action and between the same parties are sought'. brought in the courts of different Contract- ing States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdic- tion of the court first seised is established. 5. In Overseas Union Insurance 3 the Court, referring to its judgment in Gubisch, * held that Article 21 of the Convention was intended:

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seised had exclusive jurisdiction under the amended, or with the provisions of a con- Convention, Article 21 of the Convention vention which was in force between the State prevented the court second seised from of origin and the State addressed when the examining the jurisdiction of the court first proceedings were instituted.' seised where the jurisdiction of the latter was contested; the only option for the court sec- ond seised, in the event of its not declining jurisdiction, was to stay proceedings.

The facts and the national court's questions

7. Article 29 of the San Sebastian Conven- tion provides:

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to pay her the amount in question and an Lords, which decided to seek a ruling from order for payment. the Court on the following questions:

10. Mrs von Horn subsequently commenced 'In a case where: proceedings in England, issuing a writ on 9 November 1992 which was served on the defendant on 18 November 1992. Mr Cinna- mond then issued a summons seeking a dec- laration that the English court had no juris- diction; as the court second seised, it should (a) there are pending proceedings in two stay proceedings and in due course decline different Contracting States involving the jurisdiction pursuant to Article 21 of the same cause of action and between the Convention. same parties;

(b) the first such proceedings in time were initiated in Contracting State A before 11. It is common ground that both sets of the Brussels Convention and/or any proceedings are between the same parties applicable Accession Convention came and concern the same cause of action within into force in that State; the meaning of Article 21. The problem in the case arises from the fact that Portugal's accession to the Convention, pursuant to the San Sebastian Convention, did not take effect until 1 July 1992, that is to say after the com- mencement of the Portuguese proceedings (c) the second such proceedings are initiated (but before the commencement of the in Contracting State B in accordance English proceedings). with Article 2 of the Brussels Conven- tion after the Brussels Convention and/ or any applicable Accession Convention has come into force in both State A and State B;

Convention and Article 21 of the Brussels Brussels Convention applies in the present Convention (as amended): case and that the English court is therefore required to decline jurisdiction. According to Mr Cinnamond, Article 29(1) of the San Sebastian Convention does not preclude that view because the Portuguese proceedings (1) Does the Brussels Convention (as may still be considered to have been amended) and/or any applicable Acces- 'brought' for the purposes of Article 21 even sion Convention lay down any, and if so though they are not proceedings to which what, rules as to whether the proceed- the Convention 'shall apply' for the pur- ings in State B may or must be stayed, or poses of Article 29(1). Mr Cinnamond con- jurisdiction declined, on the ground of siders his view to be consistent with the pending proceedings in State A scheme and purpose of the relevant provi- sions. Since by virtue of Article 29(2) any judgment in the Portuguese proceedings will be recognized and enforceable in the other Contracting States in accordance with Title III of the Convention, Article 21 must apply in order to avoid the risk of irreconcil- and in particular able judgments in the Convention area.

(2) Is the Court second seised required or permitted, for the purpose of deciding whether or not to decline jurisdiction in respect of, or to stay, the proceedings before it, to conduct any and, if so, what examination of the basis upon which the Court first seised assumed jurisdiction?'

15. Mr Cinnamond's second subsidiary sub- could therefore lead to a denial of justice. In mission is that, in the event of the lis pendens order to meet that point Mr Cinnamond rule in the Convention not applying directly conceded at the hearing that Article 21 did or by analogy, neither the Convention nor not apply to proceedings which were not any Accession Convention precludes the capable of producing a judgment enforceable court of a Contracting State from staying in the other Contracting States because the proceedings or declining jurisdiction in cir- court first seised did not assume jurisdiction cumstances such as those of this case in on a basis which conformed to the rules of accordance with its national procedural rules the Convention or with a convention in on the ground oí forum non conveniens or lis force at the material time between the State alibi pendens. of origin and the State addressed as required by Article 29(2) of the San Sebastian Con- vention.

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Contracting States in certain circumstances tion arose from Article 29(2) not to perform to recognize and enforce a judgment given an act which would be likely to frustrate the after the date of entry into force of the Con- operation of Article 29(2) and thereby pre- vention in proceedings instituted before that vent, in part, the achievement of the pur- date was relevant to the question whether, in poses of the San Sebastian Convention. That the circumstances postulated by the referring would be the case if, in the circumstances court, the court second seised should exer- postulated by the referring court, the court cise jurisdiction to decide the dispute. second seised were to exercise jurisdiction. The judgment delivered by that court might be irreconcilable with the judgment of the court first seised, thus preventing recognition of the latter judgment in the State of the court second seised.

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Article 2 is displaced. In the Commission's Appraisal of the issues view the Convention allows such deroga- tions in favour of a non-contracting State where the conditions are fulfilled in that State, thereby filling the void left by the fact that the Convention refers only to Contract- ing States. The consequence of the 'effet The effect of Article 21 of the Convention réflexe' in such a case, however, is to entitle rather than to oblige the courts of the Con- tracting State to decline jurisdiction if the conditions are met in the non-contracting State. The Commission considers that the question of lis pendens in a non-contracting 23. I do not share Mr Cinnamond's view State should be dealt with in the same man- that Article 21 of the Convention is appli- ner. Where jurisdiction is based on an ordi- cable in the present case. Article 21 states nary ground in a Contracting State, the that, 'where proceedings ... are brought in courts of that State may decline jurisdiction, the courts of different Contracting States, as if the lis pendens existed in a Contracting any court other than the court first seised State, where the conditions provided for in shall ... stay its proceedings'. It is true that Articles 21 to 23 are fulfilled in a non- that wording does not wholly preclude contracting State. Mr Cinnamond's construction. As Mr Cin- namond suggests, it would be possible to interpret Article 21 as requiring only that, at the moment at which the applicability of Article 21 arises (i. e. at the moment when the second set of proceedings is instituted), proceedings involving the same cause of action and between the same parties should be pending in another Contracting State, even if the Convention as a whole does not apply to those proceedings.

gest that the proceedings must have been the effect that the court second seised should instituted before the court first seised after stay proceedings until the jurisdiction of the the entry into force of the Convention. That court first seised was established. It then is consistent with the other language versions added that the court second seised was never of the Convention. Only the Dutch and Ger- better placed than: man versions use terms in Article 21 ('aan- hangig zijn', 'anhängig gemacht') which might be considered to have a slightly differ- ent connotation. Contrary to Mr Cinna- mond's suggestion, it does not assist to con- trast the language of Article 21 of the Convention with that of Article 54, which contains a transitional provision similar to 'the court first seised to determine whether that in Article 29 of the San Sebastian Con- the latter has jurisdiction. Either the jurisdic- vention. Most language versions appear to tion of the court first seised is determined use terms which are virtually synonymous in directly by the rules of the Convention, the two provisions. which are common to both courts and may be interpreted and applied with the same authority by each of them, or it is derived, by virtue of Article 4 of the Convention, from the law of the State of the court first seised, in which case that court is undeniably better placed to rule on the question of its own jurisdiction. 25. That Article 21 is inapplicable in the present case also follows from the scheme of that provision.

27. Thus the premiss underlying Article 21 where the judgment of the court first seised is that the court first seised has assumed would be capable of recognition and jurisdiction under the rules of the Conven- enforcement in the Contracting States. That tion (or under national legislation in circum- concession does not however overcome the stances where that is expressly provided for difficulty that Article 21, as interpreted by by the Convention); if necessary its jurisdic- the Court in Overseas Union Insurance, does tion may be challenged in accordance with not allow the court second seised to examine the procedures laid down by the law of the the basis on which the court first seised State of the court first seised. O n that pre- assumed jurisdiction. Mr Cinnamond sought miss it is unnecessary for the court second to meet that objection by arguing that, while seised to examine the basis on which juris- the policy considerations underlying that diction was assumed by the court first seised. rule were perfectly understandable in the Accordingly, by contrast with Article 28 context of the normal application of and the second paragraph of Article 34, Article 21, the situation here was different Article 21 makes no provision for such an inasmuch as the court first seised had not examination. assumed jurisdiction on the basis of the Convention. By examining the basis on which the court first seised assumed jurisdic- tion the court second seised would not be questioning the jurisdiction of the court first seised in order to verify its correctness but would be merely ascertaining the basis on which jurisdiction was assumed in order to determine whether its judgment was capable 28. As Mrs von Horn, the United Kingdom of recognition and enforcement in the Con- and the Commission point out, the premiss tracting States. underlying Article 21 does not apply where the Convention was not in force at the moment when the first proceedings were instituted. In such circumstances the court first seised would not be bound by the juris- dictional rules of the Convention and might assume jurisdiction on a basis which the Convention considers exorbitant. Moreover, as the United Kingdom points out, a judg- ment of the court first seised might be unen- 30. That argument may deal with part of the forceable before the courts of the Contract- Court's reasoning in Overseas Union Insur- ing States. ance, namely that both courts interpret and apply the Convention with equal authority and the court first seised is better placed to interpret its national law in cases where Article 4 applies. Even on that point, how- ever, it might be replied that the Court was merely setting out the reasons for the omis- sion from Article 21 of any provision for examination of jurisdiction; that those rea- 29. As already noted above, Mr Cinnamond, sons do not apply merely serves to show that in response to that argument, conceded at Article 21 was not intended to cover a case the hearing that Article 21 applies only such as the present. In any event, the remain-

33. It is true, as the Commission points out, The effect of Article 29(2) of the San Sebas- that Article 29(2) is not itself a rule on lis tian Convention alibi pendens. However, it seems to me that it inevitably has some bearing on the steps to be taken by the court second seised in cir- cumstances such as the present. Article 27(3) of the Convention, contained in Title III to which Article 29(2) refers, provides that a judgment is not to be recognized where it is irreconcilable with a judgment given in a dis- 32. Contrary to the Commission's view, pute between the same parties in the State in however, I do not think that it is possible to which recognition is sought. As the United disregard for the purposes of this case the Kingdom points out, if in circumstances such fact that Portugal acceded to the Convention as the present the court second seised were before the English proceedings were insti- to exercise jurisdiction without regard to the tuted; indeed it is that accession which has proceedings already pending before the court given rise to the essential problem in this first seised, its judgment might prove to be case. Article 29(2) of the San Sebastian Con- irreconcilable with the judgment given sub- vention requires the recognition and enforce- sequently by the court first seised, thereby ment in the United Kingdom, in accordance preventing recognition of the latter judgment with the provisions of Title III of the Con- pursuant to Article 29(2). Such a result vention, of judgments of Portuguese courts would be inappropriate where the court sec- given after the date of entry into force of the ond seised was aware that there were pro- Convention between Portugal and the ceedings pending before the court first seised United Kingdom in proceedings instituted which might give rise to a judgment that before that date where the jurisdiction of the would otherwise require recognition and

35. That solution overcomes the difficulty noted by the Commission that the court sec- ond seised may not be able to ascertain the basis on which the court first seised assumed 34. To give effect to that obligation it would jurisdiction in the absence of a judgment by seem appropriate (as suggested by the the latter. Moreover, as the United Kingdom United Kingdom in its reply to the Court's observed at the hearing, it has the merit of written question) for the court second seised achieving a result which is consistent with to proceed as follows: the objectives of the Convention, while avoiding the undesirable consequences which would flow from the direct application of Article 21 to cases where the Convention was not in force at the moment when the first proceedings were instituted. It also accords with legal principle. It does not (1) The court second seised should seek to entail a strained interpretation of the word- ascertain the basis on which the court ing of the Convention or of the San Sebas- first seised assumed jurisdiction and, tian Convention. In addition it is consistent where it finds that the basis of jurisdic- with the rules of public international law. tion accords with the rules of the Con- Article 26 of the Vienna Convention of vention (or another convention between 22 May 1969 on the Law of Treaties embod- the States concerned applicable at the ies the universally recognized principle that material time), it should decline jurisdic- treaties must be performed by the parties in tion. good faith; and Article 18 of that Conven- tion, which imposes an obligation of good faith on the signatories to a treaty even prior to its entry into force, prohibits States from performing 'acts which would defeat the object and purpose of a treaty'. 7

(1) I n a case w h e r e t h e r e are p r o c e e d i n g s p e n d i n g in t w o States p a r t y t o t h e B r u s - sels C o n v e n t i o n involving t h e same cause of action and b e t w e e n t h e same par- ties and the Brussels C o n v e n t i o n entered into force in t h e first State b y virtue , of the San Sebastian C o n v e n t i o n after p r o c e e d i n g s w e r e instituted in the first State b u t before p r o c e e d i n g s w e r e instituted in the second State, Article 29(2) of the San Sebastian C o n v e n t i o n imposes b y implication o n the c o u r t second seised an obligation n o t t o exercise jurisdiction in such a w a y as t o frustrate the o p e r a t i o n of t h a t provision.

(2) I n such circumstances:

(a) T h e c o u r t s e c o n d seised s h o u l d seek to ascertain the basis o n w h i c h the c o u r t first seised assumed jurisdiction and, w h e r e it finds t h a t t h e basis of

8 — Sec, for example, Article 7(1) of Italian Law N o 218 of 31 May 1995 (Gazzetta Ufficiale deUa Repubblica Italiana of 3 June 1995), which provides: 'Quando, nel corso del giudizio, sia eccepita la previa pen- denza tra le stesse parti di domanda avente il medesimo oggetto e il medesimo titolo dinanzi a un giudice straniero, il giudice italiano, se ritiene che il provvedimento straniero possa produrre effetto per l'ordinamento italiano, sospende il giudizio. ...' Sec also, on German law, Haimo Schack, Internationales Zivilverfahrensrecht, 2nd edition, Verlag C. H. Beck, Munich 1996, at p. 293 et seq.; and on French law, Batiffol and Lagardc, Droit international privé, 7th edition, Vol. II, Librairie générale de droit et de jurisprudence, Paris 1983, pp. 467 and 468.