Update 17 01 2023 my article on Articles 33-34 has now been published: Lis Pendens and third states: the origin, DNA and early case-law on Articles 33 and 34 of the Brussels Ia Regulation and its “forum non conveniens-light” rules, The link in the title should give free access to the first 50 takers, and I assume link to the review for those that come after.
Update May 2017. Judgment upheld on appeal.
Thank you David Lewis QC for signalling B.WIN v Emerald Bay at the courts of Gibraltar. The dispute arises between Bwin, the internet gaming company, and various former shareholders of Bwin, domiciled at Gibraltar and England (as well as Israel). The former shareholders had advanced a claim in the New Jersey Courts alleging that Bwin made fraudulent, alternatively negligent misrepresentations in relation to the opportunity for internet gaming in New Jersey, as a result of which they divested their shares for lower value prior to a lucrative take-over of Bwin.
Bwin Gibraltar in the proceedings at issue are seeking an anti-suit injunction in respect of the existing New Jersey proceedings (an earlier EU-wide and Lugano States anti-suit request was wisely dropped, seeing as it runs counter CJEU authority (Owusu).
Jack J, considers first of all the issue of dépeçage or bifurcation for choice of court made in two successive agreements with differing choice of court provisions (distinguishing recourse for regulatory as opposed to purely contractual issues). At 38 the court misses the ball on lex causae for choice of court. While it is true that Rome I exempts choice of court agreements from its scope, going straight to the ordinary rules of English and Gibraltarian conflict of laws ( under which in general the proper law of the contract will govern the jurisdiction clause), negates Brussels I a’s new Article 25 rule combined with the recitals. These oblige the court to apply lex fori prorogati with renvoi. This may have had an impact on the complex analysis of the choice of court provisions made in the 2010 as opposed to the 2014 agreement (with an interesting side-step made into the potential reflexive effect of Article 25’s choice of court provisions).
Briefly then the new lis alibi pendens /related actions regime of Articles 33-34 Brussels I Recast is discussed. (In a much more succinct way than Zavarco). At 73 in particular: ‘I am doubtful whether any part of the [FNC] doctrine survives in cases where this Court has jurisdiction under the Brussels I-Recast Regulation. [reference to Owusu]. Instead the extent to which this Court can and should say the current proceedings is likely to be limited by Arts 33 and 34 of Brussels I-Recast.’ This is an interesting reflection on Article 34 Brussels I Recast, despite inevitable parallel particularly experienced by common law courts, not amounting to a forum non conveniens light.
Continued then at 74 ff:
‘However, I do not need to determine that issue. Gibraltar is a perfectly appropriate venue for the determination of the dispute between the parties. The business of Bwin Gibraltar is run from here. All the parties reside here. The misrepresentations relied on were made in Gibraltar or London. Most of the lay witnesses are either in Gibraltar or in Europe.
75. It is true that the New Jersey courts will be more familiar with New Jersey gaming law. However, given that a trial there would be with a civil jury, that may not be such an advantage. In terms of disclosure of documents from the DGE, this is neutral in my judgment. If the proceedings continue in Gibraltar, the parties can apply in the federal courts of New Jersey…for disclosure of documents…
76. In my judgment, neither Gibraltar nor New Jersey is a forum non conveniens. In exercising my discretion as to whether to grant an anti-suit injunction, I consider that there is nothing substantial to weigh against Bwin Gibraltar’s contractual entitlement not to be sued in New Jersey. Accordingly, I will grant an anti-suit injunction.’
A further, brief, consideration of Article 34.
(Handbook of) European Private International Law – 2nd ed. 2016 , Chapter 2, Heading 18.104.22.168.