Case Law 1968 Brussels Convention
Article 21 of the 1968 Brussels Convention
ECJ 14 October 2004 ‘Mærsk v De Haan en De Boer’ (Case
C-39/02, ECR 2004 p. I-09657) 
An application to a court of a Contracting State by the owner of a ship for the establishment of a liability limitation fund, as provided for under the International Convention of 10 October 1957 relating to the Limitation of the Liability of Owners of Sea-Going Ships, in which the potential victim of the damage is indicated, and an action for damages brought before a court of another Contracting State by that victim against the owner of the ship do not have the same subject-matter or involve the same cause of action and therefore do not create a situation of lis pendens within the terms of Article 21 of the 1968 Brussels Convention (see paras 35, 37, 42, operative part 1).
ECJ
9 December 2003 ‘Gasser v MISAT ’ (Case
C-116/02, ECR 2003 p. I-14693)
Article 21 of the 1968 Brussels Convention must be interpreted as meaning that a court second seised whose jurisdiction has been claimed under an agreement conferring jurisdiction must nevertheless stay proceedings until the court first seised has declared that it has no jurisdiction. That fact is not such as to call in question the application of the procedural rule contained in Article 21 of the Convention, which is based clearly and solely on the chronological order in which the courts involved are seised (see paras 47, 54, operative part 2).
Article 21 of the 1968 Brussels Convention must be interpreted as meaning that it cannot be derogated from where, in general, the duration of proceedings before the courts of the Contracting State in which the court first seised is established is excessively long. An interpretation whereby the application of that article should be set aside in such a situation would be manifestly contrary both to the letter and spirit and to the aim of the Convention (see paras 70, 73, operative part 3).
ECJ
8 May 2003 ‘Gantner v Basch’ (Case C-111/01,
ECR 2003 p. I-04207)
Article 21 of the 1968 Brussels Convention must be construed as meaning that, in order to determine whether two claims brought between the same parties before the courts of different Contracting States have the same subject-matter, account should be taken only of the claims of the respective applicants, to the exclusion of the defence submissions raised by a defendant. On the one hand, that provision refers only to the applicants' respective claims in each of the sets of proceedings, and not to the defence which may be raised by a defendant. On the other hand, lis pendens exists from the moment when two courts of different Contracting States are definitively seised of an action, that is to say, before the defendants have been able to put forward their arguments (see paras 26-27, 32, operative part).
ECJ
19 May 1998 ‘Drouot v CMI’ (Case C-351/96,
ECR 1998 p. I-03075)
An insurer and its insured must be considered to be one and the same party for the purposes of the application of Article 21 of the 1968 Brussels Convention, where there is such a degree of identity between their interests that a judgment delivered against one of them would have the force of res judicata as against the other. On the other hand, application of the said article cannot have the effect of precluding the insurer and its insured, where their interests diverge, from asserting their respective interests before the courts as against the other parties concerned. Thus, Article 21 of the Convention is not applicable in the case of two actions for contribution to general average, one brought by the insurer of the hull of a vessel which has foundered against the owner and the insurer of the cargo which the vessel was carrying when it sank, the other brought by the latter two parties against the owner and the charterer of the vessel, unless it is established that, with regard to the subject-matter of the two disputes, the interests of the insurer of the hull of the vessel are identical to and indissociable from those of its insured, the owner and the charterer of that vessel.
ECJ
9 October 1997 ‘Von Horn v Cinnamond’ (Case
C-163/95, ECR 1997 Page I-05451)
Where proceedings involving the same cause of action and between the same parties are pending in two different Contracting States, the first proceedings having been brought before the date of entry into force of the Brussels Convention between those States and the second proceedings after that date, the court second seised must apply Article 21 of the latter Convention if the court first seised has assumed jurisdiction on the basis of a rule which accords with the provisions of Title II of that Convention or with the provisions of a convention which was in force between the two States concerned when the proceedings were instituted; if the court first seised has not yet ruled on whether it has jurisdiction, the court second seised must apply that article provisionally. On the other hand, the latter court must not apply Article 21 of the 1968 Brussels Convention if the court first seised has assumed jurisdiction on the basis of a rule which does not accord with the provisions of Title II of that Convention or with the provisions of a convention which was in force between those two States when the proceedings were instituted.
ECJ
6 December 1994 ‘Tatry v Maciej Rata’ (Case
C-406/92, ECR 1994 p. I-05439)
1. On a proper construction, Article 57 of the 1968 Brussels Convention means that, where a Contracting State is also a contracting party to another Convention on a specific matter containing rules on jurisdiction, that specialized Convention precludes the application of the provisions of the 1968 Brussels Convention only in cases governed by the specialized Convention and not in those to which it does not apply. Where a specialized Convention contains certain rules of jurisdiction but no provision as to lis pendens or related actions, Articles 21 and 22 of the 1968 Brussels Convention accordingly apply.
2. On a proper construction of Article 21 of the 1968 Brussels Convention, where it requires, as a condition of the obligation of the second court seised to decline jurisdiction, that the parties to the two actions be identical, that cannot depend on the procedural position of each of them in the two actions. Where some but not all of the parties to the second action are the same as the parties to the action commenced earlier in another Contracting State, that article requires the second court seised to decline jurisdiction only to the extent to which the parties to the proceedings before it are also parties to the action previously commenced; it does not prevent the proceedings from continuing between the other parties.
3. For the purposes of Article 21 of the 1968 Brussels Convention, the "cause of action" comprises the facts and the rule of law relied on as the basis of the action and the "object of the action" means the end the action has in view. An action seeking to have the defendant held liable for causing loss and ordered to pay damages has the same cause of action and the same object within the meaning of that article as earlier proceedings brought by that defendant seeking a declaration that he is not liable for that loss. A subsequent action does not cease to have the same cause of action and the same object and to be between the same parties as a previous action where the latter, brought by the owner of a ship before a court of a Contracting State, is an action in personam for a declaration that that owner is not liable for alleged damage to cargo transported by his ship, whereas the subsequent action has been brought by the owner of the cargo before a court of another Contracting State by way of an action in rem concerning an arrested ship, and has subsequently continued both in rem and in personam, or solely in personam, according to the distinctions drawn by the national law of that other Contracting State.
ECJ
20 January 1994 ‘Owens Bank v Bracco’ (Case
C-129/92, ECR 1994 p. I-00117)
The 1968 Brussels Convention and, in particular, Articles 21, 22 and 23 thereof, do not apply to proceedings, or to issues arising in proceedings, in Contracting States for the recognition and enforcement of judgments given in civil and commercial matters in non-contracting States.
First, it follows from Articles 26 and 31 of the 1968 Brussels Convention, which are to be read in conjunction with Article 25, that the procedures provided for in Title III of the Convention, which concerns recognition and enforcement, apply only to judgments given by the courts of Contracting States. Secondly, the rules on jurisdiction contained in Title II of the Convention do not establish the forum in which proceedings for the recognition and enforcement of judgments given in non-contracting States are to take place, having regard to the fact that Article 16(5), which provides that in proceedings concerned with the enforcement of judgments the courts of the Contracting State in which the judgment has been or is to be enforced are to have exclusive jurisdiction, is also to be read in conjunction with the definition of "judgment" contained in Article 25. No distinction can be drawn in that regard between an order for enforcement simpliciter and a judgment of a court of a Contracting State ruling on an issue arising in proceedings for the enforcement of a judgment given in a non-contracting State, since if the subject-matter of such a dispute is such that it falls outside the scope of the Convention, the existence of a preliminary issue on which the court has to give a ruling in order to decide the dispute cannot justify the application of the Convention, whatever the nature of that issue may be.
ECJ
27 June 1991 ‘Overseas Union v New Hampshire’ (Case
C-351/89, ECR 1991 p. I-03317)
Article 21 of the 1968 Brussels Convention must be interpreted as meaning that the rules applicable to lis alibi pendens set out therein must be applied irrespective of the domicile of the parties to the two sets of proceedings. Without prejudice to the case where the court second seised has exclusive jurisdiction under the 1968 Brussels Convention and in particular under Article 16 thereof, Article 21 of that Convention must be interpreted as meaning that, where the jurisdiction of the court first seised is contested, the court second seised may, if it does not decline jurisdiction, only stay the proceedings and may not itself examine the jurisdiction of the court first seised.
ECJ
8 December 1987 'Gubisch v Palumbo' (Case 144/86,
ECR 1987 p. 04861)
The terms used in Article 21 of the 1968 Brussels Convention in order to determine whether a situation of lis pendens arises must be regarded as independent. Lis pendens within the meaning of that Article arises where a party brings an action before a court in a Contracting State for the rescission or discharge of an international sales contract whilst an action by the other party to enforce the same contract is pending before a court in another Contracting State.
ECJ 7 June 1984 'Zelger v Salinitri' (Case 129/83, ECR 1984 p. 02397)
Article 21 of the 1968 Brussels Convention must be interpreted as meaning that the court "first seised" is the one before which the requirements for proceedings to become definitively pending are first fulfilled, such requirements to be determined in accordance with the national law of each of the courts concerned.