Just before Christmas the Court of Appeal dismissed the appeal in Etihad Airways PJSC v Flother  EWCA Civ 1707. I discussed the High Court judgment here – the only properly discussed issue under appeal (the A25 discussion on the court being ‘seized’ as I noted was not entirely acte clair, either, yet is dealt with in 3 short paras at 89-91 ) is whether Brussels Ia’s Article 31(2) anti-torpedo mechanism applies to so-called asymmetric choice of court.
The High Court focused on not treating such clauses as a whole but rather on the parties’ individual obligations, in terms of jurisdiction, vis-a-vis the specific claim brought. That effectively meant it sidestepped having to rule on whether A31(2) applies to asymmetric choice of court.
Henderson LJ first of all (at 52, following discussion of the Article’s genesis as an antidote to CJEU Gasser) holds that A31(2) (ia because of the use of ‘without prejudice’ to A31(2) in A29) is not to be construed narrowly as being an exception to A29 and (at 68, again following discussion of the authorities) that the guiding rule for the application of A31(2) must be party autonomy. At 73 he points out that the fundamental difficulty with the opposite conclusion is that on a narrow construction of Article 31(2), the job of rendering the torpedo harmless, was left only half done. That may be so – however I am still not convinced. It might not have reached the judgment however I think more analysis (including linguistically) could have been of the wording of ‘exclusive’ and ‘the proceedings’, for instance. Given BIa’s DNA I do not think it is the Member States courts’ place to finish the job if clear statutory language has left it hanging. A31(2) most certainly is not the only place in BIa where intentions expressed in the travaux are not completely reflected in the final law’s provisions.
At 82 ff the discussion, equally obiter as at the High Court, turns to the Hague Convention, which has of course increased in relevance following the no-deal Brexit for judicial co-operation. Justifiably Henderson LJ suggests obiter that there is no instruction at all to apply BIa and the Hague in conformity with each other, and that the Hague neither applies to non-exclusive choice of court nor has any A29 BIa-type lis pendens rule.
The request for a CJEU reference is dismissed, with at 94 reference in support to other Member States’ courts not having done so, either.
EU Private International Law, 3rd ed. 2021, Heading 188.8.131.52, para 2.343 in particular.