BIFURCATION — COMPLETE
Brussels I bis / Brussels Convention — Scope & Arbitration
Exclusion
1. EUROCONTROL (C-29/76)
Foundational case on the material scope of the Brussels Convention. The
CJEU held that "civil and commercial matters" must be interpreted
autonomously, not by reference to national law. A claim by a public
authority (Eurocontrol) exercising its public powers (collecting mandatory
air navigation charges) falls outside the Convention's scope.
2. FAHNENBROCK (C-226/13 ETC.)
Greek sovereign bondholders sued in German courts for loss caused by the
retroactive insertion of a Collective Action Clause into Greek government
bonds. The CJEU held the claim fell within "civil and commercial matters"
because the dispute did not arise from the exercise of public powers,
despite involving a State; the bond relationship was governed by private
law.
3. LEO KUHN (C-308/17)
Follow-up to Fahnenbrock on Austrian bondholders' claims against Greece.
Confirmed that claims relating to sovereign bonds restructured by the
Greek legislature via CACs are "civil and commercial matters" within
Brussels I bis, as the bond relationship was originally private law in nature.
4. MAHA (C-494/23)
Recent case on the scope of Brussels I bis. Addressed whether a claim by
an individual against a State related to the enforcement of public law
obligations falls within the civil and commercial matters scope. Reinforces
the autonomous interpretation of "civil and commercial" and the acta jure
gestionis / acta jure imperii distinction.
5. RICH (C-190/89)
The arbitration exclusion in Art. 1(2)(d) Brussels Convention. An English
court was asked to appoint an arbitrator in a dispute with an Italian party.
The CJEU held that the arbitration exclusion covers all judicial proceedings
that have arbitration as their subject matter — including proceedings
ancillary or incidental to arbitration, such as the appointment of an
arbitrator.
6. VAN UDEN (C-391/95)
Jurisdiction of a Member State court to grant provisional/interim measures
in support of arbitration proceedings located in another Member State. The
CJEU held that national courts retain jurisdiction to grant interim measures
even when the substance is referred to arbitration, provided there is a
,"real connecting link" between the subject matter of the measures and the
territorial jurisdiction of that court.
7. WEST TANKERS (C-185/07)
Anti-suit injunctions and arbitration. An English court issued an anti-suit
injunction to restrain Italian court proceedings in breach of an arbitration
clause. The CJEU held this is incompatible with Brussels I bis: Member
State courts cannot issue anti-suit injunctions to protect arbitration
agreements because this would undermine the mutual trust principle and
the Regulation's jurisdiction rules.
8. LONDON STEAM-SHIP OWNERS' MIAL V SPAIN (C-700/20)
Recognition and enforcement of an arbitral award that conflicted with a
judgment of a Member State court. The CJEU held that Brussels I bis does
not preclude recognition of an arbitral award under the New York
Convention, even if it conflicts with a judgment of a Member State,
because the arbitration exclusion means Brussels I bis does not govern the
recognition of awards.
9. J V H LIMITED (C-568/20)
Concerned whether an action for a declaration that an arbitration clause is
invalid falls within the Brussels I bis arbitration exclusion. The CJEU
confirmed the broad scope of the exclusion: proceedings whose principal
subject matter is arbitration (including the validity of an arbitration clause)
are excluded.
Lis Pendens & Related Actions (Arts. 29–34)
10.THE TATRY (C-406/92)
Seminal case on lis pendens under Art. 21 Brussels Convention (now Art.
29 Brussels I bis). Proceedings between the same parties in two Member
States: the court second seised must stay its proceedings. "Same cause of
action" requires the same object and the same cause. Also addressed the
situation where only some parties overlap — related actions rules apply for
the non-identical parties.
11.GASSER (C-116/02)
Austrian proceedings were filed second, after Italian proceedings. Austria
had a choice-of-court clause. The CJEU controversially held that the court
second seised — even one designated by an exclusive choice-of-court
clause — must nonetheless stay proceedings until the court first seised
has declined jurisdiction. This result was reversed by Art. 31(2) Brussels I
bis for exclusive choice-of-court agreements.
, 12.WEBER V WEBER (C-438/12)
Application of the related actions rules in the context of parallel
proceedings concerning immovable property. Clarifies the concept of
"related" actions and the discretion of the court second seised to stay or
decline jurisdiction under Art. 30 Brussels I bis.
13.TURNER (C-159/02)
Anti-suit injunctions within the EU. An English court granted an anti-suit
injunction preventing a party from pursuing proceedings in Spain. The
CJEU held this is incompatible with the Brussels regime: courts of one
Member State cannot issue anti-suit injunctions against proceedings in
courts of another Member State.
14.CHARLES TAYLOR ADJUSTING V STARLIGHT (C-590/21)
Whether an English judgment awarding damages for breach of an
exclusive jurisdiction clause (by suing in Greece) must be recognised
under Brussels I bis. The CJEU held such a "torpedo-damages" judgment is
not contrary to Art. 45 Brussels I bis and must be recognised, reinforcing
the enforceability of choice-of-court agreements.
15.OWUSU (C-281/02)
Forum non conveniens and Brussels I bis. A UK court sought to decline
jurisdiction in favour of Jamaica (a third State) on forum non conveniens
grounds, even though the defendant was UK-domiciled. The CJEU held that
Art. 2 Brussels Convention (now Art. 4 Brussels I bis) grants a right to sue
in the defendant's domicile court that cannot be displaced by forum non
conveniens, even in favour of a third State.
Special Jurisdiction — Defendant's Domicile & Article 7
16.LINDNER (C-327/10)
Determination of domicile under Brussels I bis when the defendant's
address is unknown. The CJEU held that courts must make reasonable
enquiries to establish domicile; if genuinely unknown, Brussels I bis may
not apply, and national rules on jurisdiction over unknown defendants may
fill the gap — but the court must ensure due process.
17.COMMERZBANK (C-296/20)
Interpretation of Art. 7(1) Brussels I bis (place of performance of
contractual obligation). A loan agreement between parties in different
Member States; addressed which court has jurisdiction for the contractual
obligation at issue. Clarified the Tessili/De Bloos methodology for
identifying the relevant obligation and its place of performance.
Brussels I bis / Brussels Convention — Scope & Arbitration
Exclusion
1. EUROCONTROL (C-29/76)
Foundational case on the material scope of the Brussels Convention. The
CJEU held that "civil and commercial matters" must be interpreted
autonomously, not by reference to national law. A claim by a public
authority (Eurocontrol) exercising its public powers (collecting mandatory
air navigation charges) falls outside the Convention's scope.
2. FAHNENBROCK (C-226/13 ETC.)
Greek sovereign bondholders sued in German courts for loss caused by the
retroactive insertion of a Collective Action Clause into Greek government
bonds. The CJEU held the claim fell within "civil and commercial matters"
because the dispute did not arise from the exercise of public powers,
despite involving a State; the bond relationship was governed by private
law.
3. LEO KUHN (C-308/17)
Follow-up to Fahnenbrock on Austrian bondholders' claims against Greece.
Confirmed that claims relating to sovereign bonds restructured by the
Greek legislature via CACs are "civil and commercial matters" within
Brussels I bis, as the bond relationship was originally private law in nature.
4. MAHA (C-494/23)
Recent case on the scope of Brussels I bis. Addressed whether a claim by
an individual against a State related to the enforcement of public law
obligations falls within the civil and commercial matters scope. Reinforces
the autonomous interpretation of "civil and commercial" and the acta jure
gestionis / acta jure imperii distinction.
5. RICH (C-190/89)
The arbitration exclusion in Art. 1(2)(d) Brussels Convention. An English
court was asked to appoint an arbitrator in a dispute with an Italian party.
The CJEU held that the arbitration exclusion covers all judicial proceedings
that have arbitration as their subject matter — including proceedings
ancillary or incidental to arbitration, such as the appointment of an
arbitrator.
6. VAN UDEN (C-391/95)
Jurisdiction of a Member State court to grant provisional/interim measures
in support of arbitration proceedings located in another Member State. The
CJEU held that national courts retain jurisdiction to grant interim measures
even when the substance is referred to arbitration, provided there is a
,"real connecting link" between the subject matter of the measures and the
territorial jurisdiction of that court.
7. WEST TANKERS (C-185/07)
Anti-suit injunctions and arbitration. An English court issued an anti-suit
injunction to restrain Italian court proceedings in breach of an arbitration
clause. The CJEU held this is incompatible with Brussels I bis: Member
State courts cannot issue anti-suit injunctions to protect arbitration
agreements because this would undermine the mutual trust principle and
the Regulation's jurisdiction rules.
8. LONDON STEAM-SHIP OWNERS' MIAL V SPAIN (C-700/20)
Recognition and enforcement of an arbitral award that conflicted with a
judgment of a Member State court. The CJEU held that Brussels I bis does
not preclude recognition of an arbitral award under the New York
Convention, even if it conflicts with a judgment of a Member State,
because the arbitration exclusion means Brussels I bis does not govern the
recognition of awards.
9. J V H LIMITED (C-568/20)
Concerned whether an action for a declaration that an arbitration clause is
invalid falls within the Brussels I bis arbitration exclusion. The CJEU
confirmed the broad scope of the exclusion: proceedings whose principal
subject matter is arbitration (including the validity of an arbitration clause)
are excluded.
Lis Pendens & Related Actions (Arts. 29–34)
10.THE TATRY (C-406/92)
Seminal case on lis pendens under Art. 21 Brussels Convention (now Art.
29 Brussels I bis). Proceedings between the same parties in two Member
States: the court second seised must stay its proceedings. "Same cause of
action" requires the same object and the same cause. Also addressed the
situation where only some parties overlap — related actions rules apply for
the non-identical parties.
11.GASSER (C-116/02)
Austrian proceedings were filed second, after Italian proceedings. Austria
had a choice-of-court clause. The CJEU controversially held that the court
second seised — even one designated by an exclusive choice-of-court
clause — must nonetheless stay proceedings until the court first seised
has declined jurisdiction. This result was reversed by Art. 31(2) Brussels I
bis for exclusive choice-of-court agreements.
, 12.WEBER V WEBER (C-438/12)
Application of the related actions rules in the context of parallel
proceedings concerning immovable property. Clarifies the concept of
"related" actions and the discretion of the court second seised to stay or
decline jurisdiction under Art. 30 Brussels I bis.
13.TURNER (C-159/02)
Anti-suit injunctions within the EU. An English court granted an anti-suit
injunction preventing a party from pursuing proceedings in Spain. The
CJEU held this is incompatible with the Brussels regime: courts of one
Member State cannot issue anti-suit injunctions against proceedings in
courts of another Member State.
14.CHARLES TAYLOR ADJUSTING V STARLIGHT (C-590/21)
Whether an English judgment awarding damages for breach of an
exclusive jurisdiction clause (by suing in Greece) must be recognised
under Brussels I bis. The CJEU held such a "torpedo-damages" judgment is
not contrary to Art. 45 Brussels I bis and must be recognised, reinforcing
the enforceability of choice-of-court agreements.
15.OWUSU (C-281/02)
Forum non conveniens and Brussels I bis. A UK court sought to decline
jurisdiction in favour of Jamaica (a third State) on forum non conveniens
grounds, even though the defendant was UK-domiciled. The CJEU held that
Art. 2 Brussels Convention (now Art. 4 Brussels I bis) grants a right to sue
in the defendant's domicile court that cannot be displaced by forum non
conveniens, even in favour of a third State.
Special Jurisdiction — Defendant's Domicile & Article 7
16.LINDNER (C-327/10)
Determination of domicile under Brussels I bis when the defendant's
address is unknown. The CJEU held that courts must make reasonable
enquiries to establish domicile; if genuinely unknown, Brussels I bis may
not apply, and national rules on jurisdiction over unknown defendants may
fill the gap — but the court must ensure due process.
17.COMMERZBANK (C-296/20)
Interpretation of Art. 7(1) Brussels I bis (place of performance of
contractual obligation). A loan agreement between parties in different
Member States; addressed which court has jurisdiction for the contractual
obligation at issue. Clarified the Tessili/De Bloos methodology for
identifying the relevant obligation and its place of performance.
