Owusu and National Lis Pendens Doctrines
In Owusu, the Grand Chamber of the Court of Justice of the European Communities held that English courts may not decline jurisdiction on the ground that a third state court is Forum Conveniens when the Brussels Convention applies. English courts have no discretion when Article 2 of the Convention grants them jurisdiction.
What is the impact of this decision in continental Europe? Civil law jurisdictions do not have forum non conveniens doctrines, but they apply instead national doctrines of lis pendens and related actions. Are these doctrines impacted at all by Owusu?
Let’s take an example. Here is a contractual dispute between a Gabonese company and a French company. The French company initiates proceedings in Gabon. Shortly after, the Gabonese company initiates proceedings in France. The French company is domiciled in France, so the jurisdiction of the French court is governed by Article 2 of the Brussels I Regulation. May the French court apply its national doctrine to decline jurisdiction?
The relevant doctrine is not FNC, but it has interesting features. It is a special form of lis pendens. On the one hand, a number of conditions must be met: proceedings must have been initiated first before the foreign court, the dispute must be the same (triple identity), the foreign jugdment would be recognised in the forum. On the other hand, the French court only has discretion to decline jurisdiction.
In a judgment of February 19th, 2013, the French supreme court for private and criminal matters (Cour de cassation) affirmed a decision whereby the Paris court had declined jurisdiction in that very same circumstances. It seems that the Owusu decision was neither mentioned nor discussed before the Cour de cassation.
H/T: Severine Menetrey
Dear Severine,
thank you for the information.
The question is of course of the utmost interests, not only for EU Member States but also (I would say, in particular!) for third States. In Switzerland we also consider that in the relationship to third States our national lis pendens rules (art. 9 PIL Act) are applicable, included in the matters covered by the Lugano Convention. However, we are afraid that in areas not covered by that Convention (such as succession, just to make an example) the interpretation of the ECJ and of the courts in EU Member states might be different after Owusu.
In my opinion, French court were right in applying nationa lis pendens rules. I am convinced that the meaning of Owusu should not be extended over the case of forum non conveniens. What the Court intended to exclude was the unforseeability linked with fnc and not all mechanism aimed at avoiding parallel proceedings.
One has also to consider that the European instruments do not regulate, for the time being, recognition and enforcement of decisions from third States. If this is left to the internal rules of each MS, the same should be also true for lis pendens, which is directly linked with the recognition of foreign decisions.
Just few thoughts on a very sensitive issue…
Best, Andrea Bonomi
Dear Andrea,
Thanks for sharing with us the Swiss view.
Now, I have to say that I am not very convinced by your distinction between FNC and discretionary doctrines of lis pendens on the ground of unforeseeability. If a given national doctrine is discretionary, its operation should be as “unforeseeable” as FNC. Indeed, one could argue that at least the English explain how discretion is to be exercised, while the French do not.
Dear Gilles,
I agree that the distinction based on “foreseeability” is probably not very convincing, not only with respect to discretionary doctrines onf lis pendens but also with respect to mandatory lis pendens. Since lis pendens depends on strict chronological priority it also is unpredictable to a very large extent… And personally I tend to consider that FNC has very serious advantages if compared to pure lis pendens.
However, the approach of the ECJ in Owusu was to put great emphasis on the unpredictability of FNC and this gives us the possibility to limit the negative effects of that decision. I believe that it would be extremely unfortunate to extend Owusu to lis pendens as well.
Best!