Cases PIL
1. Introduction
Gasser Principle of mutual trust - Facts: Italian company goes to Italian court despite the choice of court clause ->
mutual trust ensures that MS not circumvent the lis alibi pendens rule -> Austrian
judge has to wait and has to trust that the Italian judge will apply the rules in the
way they should have to be applied
- B1A is a regulation that is harmonized: a detailed set of general rules which all MS
should trust
Turner Principle of mutual trust - No anti-suit injunction in BIa, because goes against the principle of mutual trust (and
the effectiveness of the convention: undermines the effet utile of B1A)
Owusu Need of an international - We can’t have forum non conveniens (which means: a natural court may decline to
element exercise jurisdiction on the ground that a court in an other state, which has also
jurisdiction would objectively be a more appropriate forum for the trial of the action)
Lindner Need of an international - Everything about the case was Tsjech -> but he doesn’t have Tsjech nationality ->
element went of the radar -> so where can I sue this guy? is there an international element? -
> yes the fact that he has German nationality might trigger the German courts in the
case
- So nationality is not a decisive factor for the international element: fact that
defendant has different nationality than claimant may suffice to have an
international element, but is not required
Commerzbank Need of an international - After the contract was concluded the consumer moved to Switzerland ->
element international element? -> predictability vs protection of the weaker category
- In this case: protection of the weaker category
Eurocontrol Civil and commercial matters - A dispute between an individual and the state is NOT a civil and commercial matter
when the public body is exercising its public powers
- Subject matter of the action: state action only falls outside B1A if it is an acta iure
imperii (a decision as a public authority in the exercise of its powers), so public
authorities are not by definition excluded from B1A
Fahnenbrock Civil and commercial matters - To be excluded: government action needs to have an immediate & direct effect on
the legal relationship; if any distance between capacity as government and the
relevant facts of case, then no such effect -> no acta iure imperii -> within B1a
scope
Khun Civil and commercial matters - CJEU abandons its own Fahnenbrock test and emphasizes context: origin of the
dispute => no more immediate & direct effect required => Court emphasizes
context to determine acta iure imperii
,Dinant Bar v Maitre DN Civil and commercial matters - Bifurcation of jurisdiction possible: part of case can be under B1a scope, part can fall
outside scope
Supreme Site Services Civil and commercial matters - Eurocontrol criteria: litigation may be excluded by reason of
o Either the legal relationship between parties (‘acting as public body’)
o Or of the subject matter of the action
Rich Arbitration exclusion - Whether exception applies, depends on the subject-matter of the dispute: all
measures auxiliary to arbitration also fall under exclusion (eg. Appointment of
arbitrator by a court)
Van Uden Arbitration exclusion - Consistent with Rich: Arbitration exception applies to proceedings ancillary to
arbitration proceedings
- Provisional measures are not in principle ancillary to arbitration proceedings -> they
are ordered in parallel to these proceedings
- Interim measures by the national court or art. 35 BIa (cannot be made if the subject
matter falls outside the scope)
West-Tankers Arbitration exclusion - Proceedings on arbitral anti-suit injunctions fall under exclusion
- Incidental question on the validity of arbitration agreements do fall under B1a scope
Gazprom Arbitration exclusion - The enforcement of arbitral awards falls outside the BIa -> because would amount to
anti-suit
, 2. STEP 1: Exclusive jurisdiction – article 24
- Rights in rem and tenancies of immovable property -> lex rei sitae
- The incorporation of companies and certain other aspects of company law
- The validity of entries in public registers
- The registration or validity of registered intellectual property rights
- The enforcement of judgements
Reichert Rights in rem - Extends to actions which aim to determine the extent, content, ownership or
possession (>< many national laws) of immovable property OR the existence of
other rights in rem therein
Gaillard Rights in rem - Rights in rem which works erga omnes <-> rights in personam
- Right in rem has to be the object of the proceedings -> right in rem has to be
subject-matter of case for A24 to apply, not merely be involved in the case
- Action for rescission of a contract for the sale of land -> action in personam (not a
right in rem as object, so it is a right in personam)
Weber v Weber Rights in rem - No real ius commune on what a right in rem is
- The yardstick for whether proceedings have erga omnes character, in the absence of
European harmonization, is and remains national law => deciding erga omnes by
virtue of national law may justify A24 application
- Right of first refusal? -> erga omnes
Webb v Webb Rights in rem - Claim of trustee obligations -> not an action in rem within the meaning of art. 24 of
the convention
- Claim formulation may determine if case falls under exclusive jurisdiction (eg. Claim
to a trust containing immovable property is not a right in rem, whereas claiming
ownership of the property would be)
Schmidt v Schmidt Rights in rem - Bifurcation of claims concerning A24 application is possible
- Actions seeking removal of name form land register concerns right in personam, A24
does not apply
Kerr v Postnova Rights in rem - Co-ownership case -> refused to pay -> suit -> under art. 24? -> no
Hacker Rights in rem - A24 only applies to tenancies, not right of use (eg. Lease, usufruit, gift,…)
- If tenancy included in wider agreement then no longer A24 application (such as
other services: pick-up from airport,..)
Klein Rights in rem - Time sharing on building does not fall within scope of tenancy, A24 does not apply
BVG Companies - The subject-matter of the case is the contract itself. BVG pleads that the enter into
the contract is invalid on the basis of infringement of the statutes by the
1. Introduction
Gasser Principle of mutual trust - Facts: Italian company goes to Italian court despite the choice of court clause ->
mutual trust ensures that MS not circumvent the lis alibi pendens rule -> Austrian
judge has to wait and has to trust that the Italian judge will apply the rules in the
way they should have to be applied
- B1A is a regulation that is harmonized: a detailed set of general rules which all MS
should trust
Turner Principle of mutual trust - No anti-suit injunction in BIa, because goes against the principle of mutual trust (and
the effectiveness of the convention: undermines the effet utile of B1A)
Owusu Need of an international - We can’t have forum non conveniens (which means: a natural court may decline to
element exercise jurisdiction on the ground that a court in an other state, which has also
jurisdiction would objectively be a more appropriate forum for the trial of the action)
Lindner Need of an international - Everything about the case was Tsjech -> but he doesn’t have Tsjech nationality ->
element went of the radar -> so where can I sue this guy? is there an international element? -
> yes the fact that he has German nationality might trigger the German courts in the
case
- So nationality is not a decisive factor for the international element: fact that
defendant has different nationality than claimant may suffice to have an
international element, but is not required
Commerzbank Need of an international - After the contract was concluded the consumer moved to Switzerland ->
element international element? -> predictability vs protection of the weaker category
- In this case: protection of the weaker category
Eurocontrol Civil and commercial matters - A dispute between an individual and the state is NOT a civil and commercial matter
when the public body is exercising its public powers
- Subject matter of the action: state action only falls outside B1A if it is an acta iure
imperii (a decision as a public authority in the exercise of its powers), so public
authorities are not by definition excluded from B1A
Fahnenbrock Civil and commercial matters - To be excluded: government action needs to have an immediate & direct effect on
the legal relationship; if any distance between capacity as government and the
relevant facts of case, then no such effect -> no acta iure imperii -> within B1a
scope
Khun Civil and commercial matters - CJEU abandons its own Fahnenbrock test and emphasizes context: origin of the
dispute => no more immediate & direct effect required => Court emphasizes
context to determine acta iure imperii
,Dinant Bar v Maitre DN Civil and commercial matters - Bifurcation of jurisdiction possible: part of case can be under B1a scope, part can fall
outside scope
Supreme Site Services Civil and commercial matters - Eurocontrol criteria: litigation may be excluded by reason of
o Either the legal relationship between parties (‘acting as public body’)
o Or of the subject matter of the action
Rich Arbitration exclusion - Whether exception applies, depends on the subject-matter of the dispute: all
measures auxiliary to arbitration also fall under exclusion (eg. Appointment of
arbitrator by a court)
Van Uden Arbitration exclusion - Consistent with Rich: Arbitration exception applies to proceedings ancillary to
arbitration proceedings
- Provisional measures are not in principle ancillary to arbitration proceedings -> they
are ordered in parallel to these proceedings
- Interim measures by the national court or art. 35 BIa (cannot be made if the subject
matter falls outside the scope)
West-Tankers Arbitration exclusion - Proceedings on arbitral anti-suit injunctions fall under exclusion
- Incidental question on the validity of arbitration agreements do fall under B1a scope
Gazprom Arbitration exclusion - The enforcement of arbitral awards falls outside the BIa -> because would amount to
anti-suit
, 2. STEP 1: Exclusive jurisdiction – article 24
- Rights in rem and tenancies of immovable property -> lex rei sitae
- The incorporation of companies and certain other aspects of company law
- The validity of entries in public registers
- The registration or validity of registered intellectual property rights
- The enforcement of judgements
Reichert Rights in rem - Extends to actions which aim to determine the extent, content, ownership or
possession (>< many national laws) of immovable property OR the existence of
other rights in rem therein
Gaillard Rights in rem - Rights in rem which works erga omnes <-> rights in personam
- Right in rem has to be the object of the proceedings -> right in rem has to be
subject-matter of case for A24 to apply, not merely be involved in the case
- Action for rescission of a contract for the sale of land -> action in personam (not a
right in rem as object, so it is a right in personam)
Weber v Weber Rights in rem - No real ius commune on what a right in rem is
- The yardstick for whether proceedings have erga omnes character, in the absence of
European harmonization, is and remains national law => deciding erga omnes by
virtue of national law may justify A24 application
- Right of first refusal? -> erga omnes
Webb v Webb Rights in rem - Claim of trustee obligations -> not an action in rem within the meaning of art. 24 of
the convention
- Claim formulation may determine if case falls under exclusive jurisdiction (eg. Claim
to a trust containing immovable property is not a right in rem, whereas claiming
ownership of the property would be)
Schmidt v Schmidt Rights in rem - Bifurcation of claims concerning A24 application is possible
- Actions seeking removal of name form land register concerns right in personam, A24
does not apply
Kerr v Postnova Rights in rem - Co-ownership case -> refused to pay -> suit -> under art. 24? -> no
Hacker Rights in rem - A24 only applies to tenancies, not right of use (eg. Lease, usufruit, gift,…)
- If tenancy included in wider agreement then no longer A24 application (such as
other services: pick-up from airport,..)
Klein Rights in rem - Time sharing on building does not fall within scope of tenancy, A24 does not apply
BVG Companies - The subject-matter of the case is the contract itself. BVG pleads that the enter into
the contract is invalid on the basis of infringement of the statutes by the
