Tag: exclusive

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Marriott v Fresson. A finding on exclusive jurisdiction distinguishing Ferrexpo.

In Marriott v Fresson & Ors [2020] EWHC 2515 (Comm) at issue in the jurisdictional challenge is whether Articles 24(2) or (3) Brussels Ia are engaged in litigation essentially seeking to uphold commitments included in two contracts expressly governed by English law and with an exclusive jurisdiction clause in favour of the courts of England. The goal of the agreements being the transfer of shares in Spanish-domiciled corporation (PEV), the question is whether they ‘have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or the validity of the decisions of their organs’ (A24(2)) alternatively ‘have as their object the validity of entries in public registers’ (A24(3)).

Toledano DJ referred ia to Koza, Zavarco, and C-144/10 BVG and held that the principal object of the proceedings is the enforcement of shareholder agreements.

Even the defendants, in their jurisdictional challenge, do not suggest that the proceedings directly call into question the validity of any specific decision of PEV organs. Rather, they contend that the proceedings are principally concerned with a claim to the legal ownership of shares in PEV which impacts upon the composition of the shareholders of PEV and prospectively therefore upon the validity of decisions of the shareholders as an organ of that company.

That was a bit optimistic for Brussels Ia’s exclusive jurisdictional rules quite clearly do not aim at claims whose eventual effect might engage the heads of jurisdiction listed in them. The distinction however is not always easy to make. Claimants may creatively formulate their claims so as they do not fall within A24 (a tactic used particularly in A24(4) intellectual property rights cases, hence requiring the judge to decide what the true object of the proceedings might be; see e.g. Chugai v UCB).

Marriott v Fresson clearly differs from Ferrexpo, which is discussed in the judgment, where validity of the resolutions of the company’s general meeting of shareholders was the direct and specifically formulated claim engaged Article 24 which was applied reflexively.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.6, Heading 2.2.6.5.

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Ablynx and VUB v Unilever. The Court of Appeal reverses on Brussels Ia’s protection for choice of court (Article 31(2), yet dithers as to precise implications.

The Court of Appeal in [2019] EWCA Civ 2192 has reversed Hacon J’s ruling which I reviewed here in [2019] EWHC 792 (Pat) Ablynx and VUB v Unilever. Hacon J had held that Article 31(2) does NOT mean that the Brussels courts, to whom jurisdiction has been assigned in a licence agreement, get to decide first on the engagement of Article 24(4)’s exclusive jurisdictional rule re the validity of patents. Hacon J had decided that A31(2) cannot apply if A24(4) is engaged.

Lewison LJ with great clarity discussed CJEU and other authority on the application of (now) A25 and A24(4) (GAT v Luk and Roche of course feature). He holds at 71 that under the terms of the Recast Regulation, the Belgian court is empowered to decide whether the English court has exclusive jurisdiction; and that that question will involve the question whether the choice of court agreement is overridden by A25(4). And at 75: ‘the mere fact that there is a whisper of invalidity does not automatically bring proceedings in a different member state to a juddering halt. If this approach were to be applied to article 31(2) it would enable the Belgian court to decide, on a provisional basis, whether there was a non-negligible possibility that the UK court would declare the UK designation of the patents invalid. If it came to that conclusion, it would then have to decide to what extent that invalidated the exclusive jurisdiction agreement.’  ‘The court first seised (in England) is required to stay its proceedings as soon as the designated court has been seised (in Belgium) and until such time as the latter court declares that it has no jurisdiction under the exclusive choice of court agreement.’ Lewison LJ does hold that the court seized has to carry out a prima facie review of the validity of the choice of court agreement.

Conclusion, at 77: ‘it is for the court designated in the exclusive jurisdiction agreement (i.e. the Belgian court) to decide whether (and, if so, to what extent) it is deprived of its jurisdiction as a result of article 25 (4).’

However subsequently and despite counsel claim at 78 that the English court should not even consider the question whether A25(4) was engaged, the Court of Appeal does hold that the English courts should carry out a prima facie review of A25(4), too: at 78: if a prima facie case is established that A24 (4) does not apply (which at 110 following lengthy discussion it holds it does not, prima facie, in the case at issue; hence the action is stayed in its entirety) then it will be for the Belgian court to decide that question definitively. The opposite, it suggests, would cause unnecessary delay and expense.

This is a very thin line between full respect for Article 25(4)’s anti-torpedo mechanism, and disciplining abuse. I am not sure this judgment settles the issue on A25(4)’s full implications for court’s respective powers.

Geert.

(Handbook of ) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.6.7, Heading 2.2.9.5.

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Central Santa Lucia L.C. v. Meliá Hotels International S.A.: Spanish court obiter applying Article 24 Brussels Ia reflexively ex-EU (Cuba).

Thank you Antonio Pastor for signalling Central Santa Lucia L.C. v. Meliá Hotels International S.A., litigation on which also more background here. The Spanish courts at MAllorca (appeal expected)  have declined jurisdiction concerning confiscated property in Cuba after the end of suspension of Title III of the Libertad Act (the “Helms-Burton Act”, well known to trade and international lawyers alike) on the basis of sovereign immunity, as Antonio explains.

However as I understand Antonio’s summary (I fear I do not have Spanish to consult the judgment myself), the Court obiter also applied Article 24(1) Brussels Ia reflexively: if Brussels Ia grants exclusive jurisdiction to the courts of the Member State in which the property is situated in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, then EU Courts should decline jurisdiction if that real estate happens to be located ex-EU. Readers will remember the discussions on this issue in one or two earlier postings on this blog.

Interesting, to say the least.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.6.

 

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Reitbauer: contract, pauliana and exclusive jurisdictional rules. CJEU simply applies Feniks, its forum contractus view remains unconvincing.

Update 18 July 2019 for an alternative view, see Michael McParland QC here. Michael’s point of view is that of the construction sector, and avoiding ‘debt dodging’. Ours (mine, below, and Michiel Poesen’s here) is the excessive stretch of the notion of contract.
Tanchev AG’s focus on fraus arguable reconciles both – but the Court did not follow.

I reviewed Tanchev AG’s Opinion in C‑722/17 Reitbauer here. Readers best refer to it to get insight into the complex factual matrix. The CJEU held on Wednesday last week- no English version of the judgment is as yet available.

In essence applicants are attempting to anchor their pauliana unto A24(5)’s enforcement jurisdiction. Failing that, the anchor might be A24(1)’s locus rei sitae exclusive jurisdictional rule.

The Court like the AG rejects jurisdiction on the basis of Article 24(5). They are right: A25(5) must not resurrect merits claims on much wider issues (claim for compensation of applicants’ debt, objections concerning the non-existence of a claim underlying a judicially ordered auction, and concerning the invalidity of the creation of the pledge for that claim under a loan agreement).

Court and AG are also right in rejecting Article 24(1) jurisdiction. The issues at stake are far removed from the reasons which justify exclusive jurisdiction. (The Court refers to Komu, Schmidt, Weber).

Then, surprisingly (for it was not part of the questions asked; the AG entertained it but that is what AGs do) the Court completes the analysis proprio motu with consideration of Article 7(1)’s forum contractus rule, with respect to claimants’ argument that the acknowledgement of debt by Isabel, cannot be used against them. Tanchev AG as I noted essentially suggested a limitation of Feniks to cases of fraus – arguably present here. At 59-60 the Court simply notes that all creditors were ‘contractually’ linked to Isabel C, and then applies Feniks to come to a finding of contractual relation between claimants and Mr Casamassima: without any reference to the fraus element (I had indeed suspected the Court would not so quickly vary its own case-law).

The AG did not discuss the place of performance of the contract (between Reitbauer et al and Mr Casamassima – this was exactly one of the sticky points signalled by Bobek AG in Feniks). The CJEU however does, and at 61 simply identifies that as the place where the underlying contract, between Isabel C and the building contractors, had to be performed: that is, the place of the renovation works in Austria.

That an Article 7(1) forum was answered at all, is surprising. That the place of performance of that contract is straightforwardly assimilated with the underlying contractual arrangement, is not necessarily convincing. That Feniks would not so soon be varied (if at all), was to be expected.

Forum contractus is surely stretching to forum abundantum.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.1

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Huawei v Conversant wireless. Reflexive application of patent validity jurisdiction confirmed in principle – but rejected in casu.

In [2019] EWCA Civ 38 Huawei v Conversant Wireless (on appeal from [2018] EWHC 808 (Pat) the Court of Appeal considered whether in the event of 2 defendants being UK based (the others domiciled in China) the UK courts may relinquish jurisdiction reflexively to honour Article 24(4) Brussels Ia’s exclusive jurisdictional rule for the validity of patents.

Neither Article 33’s lis alibi pendens or Article 34’s ‘forum non conveniens’ rule were discussed.

Huawei China and ZTE China have commenced proceedings in China against Conversant, seeking to establish invalidity and (in the case of Huawei China only) non-infringement of Conversant’s Chinese patents. Conversant have inter alia sued Huawei China and ZTE China in Germany for infringement of its German patents.

Following Owusu, jurisdiction for infringement of UK patents against UK incorporated companies must lie and remain with the English courts per Article 4 B1a. As readers will remember from my review of Ferrexpo, the English courts for some time however have noticed with relish that the CJEU in Owusu did not entertain the part of the referral which asked it whether exclusive jurisdictional rules may apply reflexively – holding thereafter in the CJEU’s stead that they might so do (in a discretionary: not a slavish fashion: Floyd J here at 115).

At 95 ff Floyd J discusses the issues after having summarised the various representations made (see a summary of the summary by John de Rohan-Truba here), with much of the discussion turning on English CPR and jurisdictional rules, and reflexive application of Article 24(4) confirmed in principle, but not applied here. Requests to refer to the CJEU were summarily dismissed.

Geert.

(Handbook of ) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.6.7, Heading 2.2.9.5.

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Ablynx and VUB v Unilever. On Brussels Ia’s protection for choice of court (Article 31(2) and, again, on DNIs and exclusive jurisdiction for patents.

[2019] EWHC 792 (Pat) Ablynx and VUB v Unilver engages similar discussions as Eli Lily v enentech and Chugai v UCB with the additional element of now, under Brussels Ia, the application of Artile 31(2). This Article makes safe the torpedo previously used to gazump choice of court, by giving the courts of the States in whose favour choice of court has been concluded, a first go at discussing the validity and application of the choice of court agreement.

Here: does Article 31(2) mean that the Brussels courts, to whom jurisdiction has been assigned in a licence agreement, get to decide first on the engagement of Article 24(4)’s exclusive jurisdictional rule re the validity of patents?

It is worth quoting Hacon J in full: at 17 ff

’17. Ms Lane (for the defendants, GAVC) submitted that the position is clear: art.31(2) is engaged and therefore these proceedings must be stayed. Art.24 could never make a difference in this court because it cannot override art.31(2). That is because art.31(2) is expressly stated to be without prejudice to art.26 but not art.24. The consequence is that all issues arising in these proceedings must be ceded to the Brussels courts, including the question whether art.24(4) is engaged and if so, what should be done about it. It is not the concern of this court.

18. I disagree. To my mind art.25(4) explains why there is no mention of art.24 in art.31(2). Art.31(2) is necessarily without prejudice to art.24 since an agreement relied on for a stay under art.31(2) can carry no legal force if it purports to exclude the courts having exclusive jurisdiction under art.24. Even on the assumptions I have stated, art.31(2) cannot apply if art.24(4) is engaged. Art.24(4)’s engagement depends on whether these proceedings are ‘concerned with’ the validity of the Patents UK within the meaning of art.24(4). I must resolve this last question before I can decide whether the (assumed) agreement carries legal force and therefore whether art.31(2) is engaged.

19. I also note that art.26 is itself made subject to art.24. This reinforces my view that the recasting of Brussels I has not altered the hierarchy of provisions awarding jurisdiction, with art.24 at the top. Arts.24 and 25 both speak of ‘exclusive jurisdiction’, but that conferred by art.24 is the more exclusive.’

Having held that Article 31(2) is not engaged, the Court still has to assess whether the claim is essentially a declaration of non-infringement or rather ‘concerns’ the validity of the patents. Defendants argue that the validity of the Patents UK would form only an incidental part of this action, since it is really a dispute about the scope of defendant’s licence.

Here, Hacon J discussed CJEU authority at length (GAT v LUK, BVG, Gasser etc.) and summarises at 53

(1) When a stay is sought under art.31(2), if an argument is raised that the court before which the stay is sought has exclusive jurisdiction under art.24, that court must decide whether the argument is correct.

(2) If the court has exclusive jurisdiction under art.24, art.31(2) is not engaged. There will be no stay.

(3) If the court does not have exclusive jurisdiction under art.24, it must decide whether at least prima facie there is an agreement which satisfies art.25 and which confers exclusive jurisdiction on courts of another Member State. If so, provided the defendant has not entered an appearance in a manner which satisfies art.26, there must be a stay of the proceedings.

EPLaw helpfully summarise the lenghty review of testimony and pleadings as follows: taking into account the usual practice in relation to patent validity proceedings in the UK, and the arguments which are typically run, the Court concluded that there was no real doubt that if the proceedings progress to trial they will be concerned with the validity of the Patents within the meaning of art.24(4). Art.24(4) was therefore engaged.

The case raises again the interesting issue of the degree to which the court may rely on parties’ submissions in particulars of claim when examining jurisdiction, or alternatively need to look beyond these stated arguments into what might and will be argued.

Leave to Appeal has been granted and a further order has already dealt with service issues.

Geert.

(Handbook of ) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.6.7, Heading 2.2.9.5.

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Tanchev AG in Reitbauer: contract, pauliana and exclusive jurisdictional rules. Suggests restriction of CJEU Feniks to cases of fraus.

A little bit of factual background (and imagination; I shall let readers’ imagination run their course) is needed to appreciate Tanchev AG’s Opinion last week in C‑722/17 Reitbauer, which engages Articles 24(1) and (5), and Article 7(1).

It is alleged in the ‘opposition proceedings’ at issue that the claim of creditor A (the defendant in the CJEU proceeding, Mr Casamassima), which arises from a loan agreement secured by a pledge, and which competes with a counterclaim of creditors B (the applicants at the CJEU: Reitbauer and Others) is invalid due to the (wrongful) preferential treatment of creditor A. This objection is similar to what is known under Austrian law as an action for avoidance (Anfechtungsklage).

The defendant, Mr Casamassima and Isabel C. (‘the debtor’) are resident in Rome and lived together, at least until the spring of 2014. In 2010, they purchased a house in Villach, Austria; and the debtor, Isabel C, was registered in the land register as being the sole owner.

Contracts for extensive renovation work of the house were entered into between Isabel and the CJEU applicants, contracts which were entered into with the ‘participation’ of Mr Casamassima.  Because the costs of the renovation work far exceeded the original budget, payments to Reitbauer et al were suspended. From 2013 onwards, Reitbauer et al were therefore involved in judicial proceedings in Austria against Isabel. Early 2014, the first judgment was handed down in favour of the applicants, and others followed. Isabel appealed against those judgments.

On 7 May 2014 before a court in Rome, Isabel acknowledged Mr Casamassima’s claim against her with respect to a loan agreement, amounting to EUR 349 772.95. She undertook to pay this amount to the latter within five years under a court settlement. In addition, Isabel undertook to have a mortgage registered on the house in Villach (Austria) in order to secure Mr Casamassima’s claim [the amount of the claim is the result of compensation between the original claim and a counterclaim. Isabel requested Mr C to pay her for overtime work. Mr C requested approximately EUR 380 000 for the purchase of the house and the works. According to him the house belonged formally only to the debtor, who was registered as the sole owner, but the funds were provided by the defendant. Finally, the two parties reached an agreement, leading to the sum at issue].

Now we come to the issues sub judice: at 17 ff (footnotes omitted):

On 13 June 2014 a (further) certificate of indebtedness and pledge certificate was drawn up under Austrian law in Vienna by an Austrian notary to guarantee the above arrangement (pledge 1). With this certificate, the pledge on the house in Villach was created on 18 June 2014.

The judgments in favour of the applicants did not become enforceable until after this date. The pledges on the house of the debtor held by the applicants, obtained by way of legal enforcement proceedings (pledge 2), therefore rank behind the contractual pledge 1 in favour of the defendant.

On 3 September 2015, the court in Rome confirmed that the court settlement of 7 May 2014 constituted a European Enforcement Order.

In order to realise the pledge, the defendant applied in February 2016 to the referring court (Bezirksgericht Villach (District Court, Villach, Austria)) for an order against the debtor, requiring a compulsory auction of the house in Villach. The house was auctioned off in the autumn of 2016 for EUR 280 000. The order of entries in the land register shows that the proceeds would go more or less entirely to the defendant because of pledge 1 (registered under Austrian law in June 2014).

With a view to preventing this, the applicants brought an action for avoidance (Anfechtungsklage) in June 2016 before the Landesgericht Klagenfurt (Regional Court, Klagenfurt, Austria) against the defendant and the debtor. The action was dismissed by that court ‘due to a lack of international jurisdiction in view of the [debtor’s and the defendant’s] domicile’ outside of Austria. In July 2017, that decision became final.

At the same time the applicants filed an opposition before the referring court (Bezirksgericht Villach (District Court, Villach)) at the hearing of 10 May 2017 regarding the distribution of the proceeds from the compulsory auction, and subsequently brought opposition proceedings, as provided for in the EO, against the defendant.

In these opposition proceedings, the applicants seek a declaration that the decision regarding the distribution to the defendant of EUR 279 980.43 was not legally valid in so far as: (i) the debtor had damages claims against the defendant of at least the same amount as the claim arising from the loan agreement, with the result that a claim no longer existed (they claim that the debtor confirmed that the defendant had placed orders with the applicants without her knowledge and consent); and (ii) the certificate of indebtedness and pledge certificate of June 2014 were drawn up merely as a formality and for the purpose of pre-empting and preventing the applicants from bringing any enforcement proceedings in relation to the house.

There we are. In essence applicants are attempting to anchor their pauliana unto A24(5)’s enforcement jurisdiction, in which case Mr C’s enforcement action has acted as a Trojan horse. (Note a similar potential in Kerr v Postnov(a)). Failing that, the anchor might be A24(1)’s locus rei sitae exclusive jurisdictional rule.

Mr C contends in substance that A24(5) B1a does not apply. He argues that the action lacks a direct connection to official enforcement measures: what is being sought is a substantive examination of the pledge entered into in his favour. By its nature, the action lodged is equivalent to an action for avoidance; and in Reichert the CJEU has already ruled that this jurisdiction is not applicable to actions for avoidance. This must therefore also apply if the action for avoidance is exercised by way of an opposition against the distribution and ensuing opposition proceedings. Moreover, he argues A24(1) B1a is not applicable, as in the opposition proceedings the connection with the location of the house at issue is lacking (the opposition proceedings took place only after the immovable property had been auctioned off by the court).

The AG first of all at 39 ff rejects jurisdiction on the basis of Article 24(5). I believe he is right: see my Trojan horse suggestion above. A25(5) must not resurrect merits claims on much wider issues (claim for compensation of applicants’ debt, objections concerning the non-existence of a claim underlying a judicially ordered auction, and concerning the invalidity of the creation of the pledge for that claim under a loan agreement ) for which the enforcement court does not have original jurisdiction. Neither does A24(1) ground jurisdiction: parallel with Reichert is obvious.

Then however the AG, sensing perhaps the suggestions of fraudulent construction, suggests Article 7(1)’s’ forum contractus as a way out – not something which the referring court had enquired about hence quite possible the CJEU might not entertain it. Clearly per Handte there is a contract between applicants and Isabel. However is Mr C involved, too?: the AG draws on Feniks: at 72 ff: in Feniks the CJEU does not require knowledge by the defendant of the first contract, nor does it require an intention to defraud. However in casu it looks like there might be both (subject to factual review by the referring court). At 84: ‘Given the fact that in the judgment in Feniks the jurisdiction in contractual matters in disputes brought against a third party was extended to an actio pauliana even though there was no contractual relationship between the applicant and the defendant, knowledge of a third party should act as a limiting factor: as in the present case, the third party needs to know that the legal act binds the defendant to the debtor and that that causes harm to the contractual rights of another creditor of the debtor (the applicants).’

And at 92: ‘the defendant’s knowledge of the existence of the contract(s) at issue is important.’

The AG is essentially suggesting a limitation of Feniks to cases of fraus – it is unlikely that the CJEU will follow (and vary Feniks so soon). However it is clear that knowledge of the contract between the other parties, particularly where supported by elements of fraus, will increase the potential for application of the (in my view problematic) Feniks route. Note the AG does not discuss the place of performance of the contract (between Reitbauer et al and Mr C – this was exactly one of the sticky points signalled by Bobek AG in Feniks).

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.1

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Learn your lines, son!: the (ir)relevance of grammar for choice of court underlined in Global Maritime Investments.

“These general terms and conditions will be governed by and construed in accordance with English law. 

With respect to any suit, action or proceedings relating to these general terms and conditions each party irrevocably submits to the jurisdiction of the English courts.”

In Anchorage, the High Court had already dismissed a semantic approach to choice of court agreements in contracts (and choice of court clauses) subject to English law. In Global Maritime Investments Cyprus v O.W., Teare J considered in summary judgment, sought by GMI, whether the aforementioned clause is exclusive, and if not, whether proceedings commenced by GMI in England, block any future proceedings on the same (or wider) contractual issues sought by OW in Denmark. GMI had started proceedings in England following OW’s November 2014 filing for bankruptcy in Denmark. OW had initiated proceedings in Denmark in March 2015. At issue was among others the ‘netting-out’ provisions between parties (effectively, a final settlement of reciprocal dues in different currencies, with derivatives of commodity transactions being the underlying transactions between the parties in this case).

Teare J held that the clause even if not so phrased verbatim, was meant to be exclusive, among others in line with what ‘the reasonable commercial man’ (the bonus mercator, if you like) would have understood the clause to be, especially under the lex contractus, English law. All the more so in light of the use of ‘irrevocably’. At 51 he does offer sound commercial advice to avoid disputes such as the one at issue: it is desirable to employ transitive language, such as in ‘each party agrees to submit all claims’.

I do not think there is justification for the Court not to have considered the impact of the Brussels I (and /or Recast) Regulation on the clause: the judgment keeps entirely shtum about it. Under the rules of the Regulation, all clauses are considered exclusive unless specifically stated. Saying that the clause expressis verbis amounts to non-exclusivity, would be quite a stretch. (I agree it is not clearly worded exclusively – however that is exactly where the Brussels I Regulation is of assistance).

It is quite clear to me that this judgment (issued 17 August – I have delayed reporting for exam reasons) will not be the end of the jurisdictional affair. In particular, parties I am sure will be at loggerheads as to what litigation is to be considered ‘relating to these general terms and conditions’, in particular with OW’s insolvency proceedings in the background.

Geert.

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Zavarco: Donaldson DJ emphasises difference between Article 34 Brussels I Recast and forum non conveniens. And considers Article 24(2)’s exclusive jurisdictional rule.

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.

Peter Ola Blomqvist v Zavarco PLC [2015] EWHC 1898 (Ch) is to my knowledge the first serious consideration of the new lis alibi pendens and related actions provisions of Articles 33-34 Brussels I Recast.

The defendant company has applied for a stay on the basis of forum non conveniens and/or lis alibi pendens founded on the pendency of the action in Kuala Lumpur.

Donaldson DJ first considers whether claimant’s action falls within Article 24(2)’s exclusive jurisdictional rule for company matters. Article 34 has no application where jurisdiction is assigned by Article 24.

Precedent referred to includes Reichert as well as BVG. The claim founds on the claimant, Mr Blomqvist’s allegation that the company has failed to comply with its obligation under applicable English corporate law to call a meeting at the request of a member registered as the holder of more than 5% of the paid-up shares so as to enable consideration of resolutions to replace the directors, thus entitling him to convene such a meeting himself.  The company contests that the court is obliged to focus on the defence that the shares were not paid up, which he suggests is the only real matter in dispute and turns solely on whether the terms of the relevant purchase agreement were complied with, a matter outside Article 24.

At 25: CJEU Case-law and the Jenard report exclude ‘from the reach of Article 24 a contractual claim to which questions of corporate governance were advanced by way of defence. It is however equally important not to remove from its ambit a claim seeking redress for failures of corporate governance on the basis of a defence which is purely contractual.’

Turning then to Article 34. Donaldson DJ suggests at 34 that ‘The clear purpose of Article 34 is to liberate the court from the constraint imposed by the Regulation in earlier versions, exemplified in Owusu , as regards stay in favour of the courts of non-Member States.’ I am not convinced. Articles 33-34 may now allow for a stay in relations with third States. Yet forum non conveniens is one thing – and indeed one ruled out by the CJEU under the Brussels regime. Articles 33-34 are quite another.

Consideration is then made of the rather awkward first condition of Article 34 that a stay requires that ‘it is expedient to hear and determine the related actions together’. At 38: ’it is hard to see how the actions could in practice ever be heard and determined together and hence how such a course could ever be expedient. This result can, as I see it, only be avoided by a purposive construction which treats the words “is expedient” as equivalent to “would have been expedient”. I believe this is right: this condition is likely to have to be interpreted at an abstract level: as in that it would have been expedient to hear the actions together (typically, by use of Article 8(1)’s anchor mechanism), had the considerations involved competition between two (or more) EU courts: seeing as an EU judge is evidently in no position to demand a related action be handed over from a third State court.

The bar for the application of Article 34 is necessarily high – and was arguably applied so in Zavarco: at 41 ff convincing arguments are displayed to that effect.

Finally, at 44 ff Donaldson DJ entirely justifiably, and emphatically, rejects the suggestion that with lis alibi pendens having failed, a stay could be issued on case-management grounds: (the Owusu) prohibition cannot be circumvented by re-labelling the exercise as one of case management so as to “achieve by the back door a result against which the ECJ has locked the front door”(per Lewison J in Skype technologies SA v Joltid Ltd [2009] EWHC 2783 (Ch) ).

This is the first proper consideration of Article 34 of the Recast. No doubt it will not be the last.

Geert.

(Handbook of) European Private International Law – 2nd ed. 2016 (forthcoming), Chapter 2, Heading 2.2.6.5, Heading 2.2.14.5.

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