The claimant in Germany sought to enforce a contract by claiming the price of a delivered machine; the claimant in Italy asked for a declaration that no contract had been entered into or, if it had, that it had been discharged by repudiatory conduct on the part of the seller.
Held: These claims involved the same cause of action because one claim was the negation of the other and that a stay should be granted by the Italian court which was second seised.
‘If, in circumstances such as those of this case, the questions at issue concerning a single international sales contract were not decided solely by the court before which the action to enforce the contract is pending and which was seised first, there would be a danger for the party seeking enforcement that under Article 27(3) a judgment given in his favour might not be recognized, even though any defence put forward by the defendant alleging that the contract was not binding had not been accepted. There can be no doubt that a judgment given in a contracting state requiring performance of the contract would not be recognized in the state in which recognition was sought if a court in that state had given a judgment rescinding or discharging the contract. Such a result, restricting the effects of each judgment to the territory of the state concerned, would run counter to the objectives of the convention, which is intended to strengthen legal protection throughout the territory of the community and to facilitate recognition in each contracting state of judgments given in any other contracting state.’
ECJ Brussels Convention – Concept of Lis pendens. – The terms used in article 21 of the Convention of 27 September 1968 in order to determine whether a situation of lis pendens arises must be regarded as independent. Lis pendens within the meaning of that article arises where a party brings an action before a court in a contracting state for the rescission or discharge of an international sales contract whilst an action by the other party to enforce the same contract is pending before a court in another contracting state.
Citations:
C-144/86, [1987] ECR 4861, R-144/86, [1987] EUECJ R-144/86, [1989] ECC 420
Links:
Jurisdiction:
European
Cited by:
Cited – Turner v Grovit and others CA 28-May-1999
A court has an inherent power to injunct a party not to institute or continue proceedings abroad, where they appear intended purely to harass another party in proceedings here. The two actions here were based upon the ‘same contractual relationship’ . .
Cited – Turner v Grovit and others HL 13-Dec-2001
The applicant was a solicitor employed by a company in Belgium. He later resigned claiming unfair dismissal, saying he had been pressed to become involved in unlawful activities. The defendants sought to challenge the jurisdiction of the English . .
Cited – Starlight Shipping Co v Allianz Marine and Aviation Versicherungs Ag and Others CA 20-Dec-2012
The Alexander T, owned by the appellant and insured by the respondents was a total loss. The insurers resisted payment, the appellant came to allege improperly, and the parties had settled the claim on full payment under a Tomlin Order. The owners . .
Cited – Wright v Granath QBD 16-Jan-2020
Defamation across borders – Jurisdiction
The claimant began an action for defamation in an online publication. The Norwegian resident defendant had begun an action there seeking a declaration negating liability. The Court was now asked by the defendant whether under Lugano, the UK action . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 14 October 2022; Ref: scu.134427
