TRW Ltd v Panasonic Industry Europe GmbH & Anor  EWHC 19 (TCC) adds to the slowly developing case-law on Article 34 Brussels Ia’s forum non conveniens light, on which I have reported at each occasion the Article to my knowledge has been applied (most recently in Ness Global Services).
The defendant Panasonic companies are based in Germany. Panasonic’s Group headquarters are in Japan. TRW is the English subsidiary, based in Solihull, of a German group of companies, ZF Group. The defendants say the parties agreed to German law and exclusive jurisdiction of the Hamburg court over any claim by TRW arising from supply of the resistors. TRW says the parties agreed to English law and jurisdiction.
There are related proceedings in Michigan, with judgment expected in about April 2021.
Kerr J decides at 55 ff here was valid A25 choice of court and hence jurisdiction for the courts at Hamburg, following the usual discussion on whether and if so which choice of court has been agreed in to and fro messages, purchase orders, invoices, references to general terms and conditions and the like. The kind of housekeeping complications which I discuss ia here.
Then follows obiter the Article 34 discussion. Parties agree that if jurisdiction under A25 BIa is established by neither party, TRW was at liberty to sue in England as the place of delivery of the goods, under A7(1) BIa; and that for A34 purposes there is a related lis alibi pendens in Michigan. The discussion turned on whether the word “expedient” in A34(1)(a) bears the meaning “desirable, even if not practicable” or “both practicable and desirable”, given the inconsistent case-law in JSC Commercial Privatbank v. Kolomoisky, SCOR v Barclays, Municipio de Mariana, Federal Republic of Nigeria v. Royal Dutch Shell plc. and of course EuroEco.
At 94 Kerr J seems to side with Kolomoisky and with not reading EuroEco as a rejection of same, however he does not take definitive sides or does not attempt to reconcile the judgments. At 95 he says he would have not exercised his discretion for a stay, for the reasons earlier listed by counsel for claimants: these were (at 92-93)
Mr Caplan strongly opposed any stay. He submitted that, assuming I have any discretion to grant a stay (contrary to his reserved position), I should not exercise it. The risk of irreconcilable judgments could not be eliminated, he argued. The Michigan case would shortly produce a judgment binding on neither party to the present claim and, probably, applying Michigan law.
There was no scope for issue estoppel or abuse of process because the parties were different and the law could be different. Neither party in this case had opted for Michigan as the chosen forum and Michigan law as the choice of law. If the outcome of the Michigan litigation helped to promote settlement of the present claim, that could happen anyway, without a stay, since this claim is still at an early stage; the first case management conference has yet to take place.
At 98 Kerr J summarises
I would refuse a stay. The first condition in article 34(1)(a) – the expediency condition – may well be met, subject to clarification of the test emerging from the case law. The second condition is met. The third is not. I am far from satisfied that a stay is necessary for the proper administration of justice.
Kerr J concludes at 99
defendants have undertaken to submit to the jurisdiction of the Hamburg court, subject to seeking a stay of proceedings in Hamburg to await the outcome of the Michigan proceedings.
The Hamburg court is likely to see A34 arguments return, lest of course the Michigan proceedings will be concluded, in which case res judicata, recognition, and irreconcilability of judgment might be a core concern.
We have fairly little, if growing (*makes a note to now really really finish that paper*) authority to work with on A34. All bits help.
European Private International, 3rd ed. 2021, Heading 18.104.22.168.2, para 2.539 ff