Brussels I Regulation

However, the lis pendens rule has been abused, as the claimant may have choice of jurisdiction for settling the dispute[1] and this may lead to abuse of the alternative application of the Brussels I Regulation, as the infringing party may submit an application of non-infringement in other Member States that are related to the action.[2] Infamously known as the “Italian Torpedo”[3] action, it involves the infringing party selecting a jurisdiction that may favour their situation, or instead a jurisdiction which is known to have a slow court process, thereby preventing the claimant in the proceedings from instigating court proceedings in other jurisdictions that are covered by the Brussels regime, effectively preventing them from successful litigation in a Member State that may favour their position or that has a faster court process. This is a major drawback within the Brussels I Regulation, as the court proceedings may be distorted to promote the side of the accused. The practical shortcomings of this sort of abuse of the alternative application of the 2001 Regulation impose on the claimant to not send to the infringing party a letter of warning or to start the proceedings as soon as possible.

The Brussels (recast) Regulation has addressed this issue of abuse, and first mentioning this in the recital of the 2012 legislation,[4] it is stated that the lis pendens rule is still in force, however, depending on a court-of-choice agreement between the parties, it is stated that once a designated court has been seized all other courts shall stay proceedings. This provides for an exception to the previous arrangement set by the 2001 regulation, as it removes the possibility of delaying the proceedings, which may favour the accused party as they may attempt to choose a jurisdiction favouring their position in the claim. The exception is clearly set out in the recast regulation.[5] When read in conjunction with the section covering the lis pendens rule[6] it is clear that the new rules on choice-of-court is merely an exception, retaining the application of the doctrine if no jurisdiction agreement exists between the parties. The introduction of this exception has been tested in court in the case of Commerzbank Aktiengesellschaft v Liquimar Tankers Management Inc.[7] It was found that the change from the previous regulation had achieved the objective of eliminating the abuse of the previous misapplication of the lis pendens doctrine by having provided an exception to that rule which serves the purpose of appropriate application of choice-of-court agreements in international litigation.

 

The current regime provides for a convenient means of acquiring justice, however the recast regulation has not completely eliminated the possibility of “Torpedo” actions within the exception. This can be seen by means of article 31 of the 2012 regulation.[8] The 2001 regulation addressed the issue of identical[9] and related[10] actions, where it is provided that if the action is identical the court must wait until the court first seized declares or relieves jurisdiction, and related actions provide the court some discretion. The recast has not made mention of the distinction, which leaves room for yet again abusing the legal system in favour of the accused party. Read in conjunction, the recast provisions in relation to court-of-choice and the lis pendens rule can be interpreted to not include “related” actions, which therefore leaves room for the accused party to make minor differences in their application, such as cause of action or the concerned parties, to an alternative jurisdiction, yet again abusing the litigation process.

[1]Council regulation 44/2001 Article 2 (2) and Article 5 (3)

[2]Štanko, Andrej “Cross-Border ‘Torpedo’ Litigation”, Common Law Review 2017, <http://www.commonlawreview.cz/cross-border-qtorpedoq-litigation#ref-7> Accessed: 2 March 2017

[3] The term was first coined by the Italian property advocate Mario Franzosi, found in the 1997 article -“Worldwide Patent Litigation and the Italian Torpedo”. 19 (7) European Intellectual Property Review p. 382 at 384

[4]Regulation (EU) No 1215/2012 Preamble, para. (22)

[5]ibid. Section 9 Article 31 (1) – (3), https://www.abogadosdeaccidentesflorida.com

[6]ibid. Section 9 Article 29

[7]Commerzbank Aktiengesellschaft v Liquimar Tankers Management Inc. [2017] EWHC 161 (Comm)

[8] Alavi, Hamed, Khamichonak, Tatsiana, “A STEP FORWARD IN THE HARMONIZATION OF EUROPEAN JURISDICTION: REGULATION BRUSSELS I RECAST”, Baltic Journal of Law & Politics 8:2 (2015): 159–181 <http://www.degruyter.com/view/j/bjlp> Accessed: 2 March 2017, DOI: 10.1515/bjlp-2015-0023

[9]Council regulation 44/2001 Article 27

[10]ibid. Article 28