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JURISDICTION: Torpedo tactics

02 June 2017  

Andrew Hutcheon and Sam Prentki investigate the impact of Brexit and recent case law on the ‘Italian Torpedo’

Prior to the recasting of the Brussels I Regulation (Council Regulation (EC) 44/2001), readers will be familiar with the litigation tactic known as the ‘Italian Torpedo’. The phrase aptly describes the strategy by which a recalcitrant defendant, who had agreed (via an exclusive jurisdiction clause) to determine disputes in the courts of a particular member state, would subvert the agreed choice of jurisdiction clause by commencing proceedings in a court of a different EU member state. This was possible because of the lis pendens rules (from ‘lis alibi pendens’ – suit pending elsewhere) that concern cases in more than one EU member state involving the same cause of action. The EU’s lis pendens rules were found in Art 27 of the Brussels I Regulation and are now contained in Art 29 of the Brussels I Regulation (Recast): Council Regulation (EU) 1215/2012, which came into force in January 2015 (the Recast Regulation). Where the courts of a member state were first seised, any other member state would have to stay subsequent proceedings before them pending resolution in the first-seised courts. This was so under the Brussels I Regulation even if the governing agreement between the parties contained an exclusive jurisdiction clause in favour of the second-seised state (the ‘first-in-time’ rule).

Additional Info

  • Case(s) Referenced:

    Commerzbank Aktiengesellschaft v Pauline Shipping Ltd and Liquimar Tankers Management Inc [2017] EWHC 161

    Erich Gasser GmbH v MISAT Srl [2003] EUECJ C-116/02

    Ms X v Banque Privée Edmond de Rothschild (2012) No 11-26.022

    Ust-Kamenogorsk Hydropower Plant JSC v AES Ust-Kamenogorsk Hydropower Plant LLP [2013] UKSC 35