Being conclusion of article by Silva Opusunju first published last week.

The matter for which jurisdiction is being sought must also not include any of the following, which have been excluded by the tenor of  Article 1 of the Regulation  the “ …status or legal capacity of natural persons;  rights in property arising out of a matrimonial relationship, will and succession; bankruptcy, proceeding relating to winding up of natural or other legal persons… social security…arbitration awards…”
iii) The  defendant is domiciled in one of the Contracting states of the EC/EFFA, which is covered by the Regulation.  For the UK, the relevant law is the Civil Jurisdiction and Judgements Act (1982), which is accomplished by a two-stage test. For a corporation, the general test is one of the seat: (i) whether the organisation was incorporated, has its registered offices or address in the UK, or (ii) whether  administrative head office is in the UK or overall command and control and management decisions are issued from the UK.
The EC requirement of domicile requires the application of domestic law to the determination of the domicile of a party in the Contracting state. The implication for the UK is that where a party is a non-Contracting state, the question of jurisdiction will be governed by common law, instead of the Regulation.  In addition, if within the Contracting states, domicile is not in the UK, but elsewhere, then the relevant law applicable in the UK will be the domicile law of that other state.  At all times, domicile is to be determined by its locality.
Perhaps it is important to highlight  the point that the spirit of the Regulation requires the defendant being sued in his place of domicile.  This means that the Regulation  can  and does override national  laws or the traditional common law rules of the forum such as the requirement of “presence or permissive service.”
iv) The Contracting state must be bequeathed with exclusive jurisdiction.
 2.1: Exceptions to the rules in jurisdiction
A further analysis reveals that four sets of jurisdictional reforms are recognisable and permissible by the instrument in the determination of matters of jurisdiction with the framework of member states. They arise from the amendments of the Regulation and have now been part of the  general rule of  law on jurisdiction. For these to apply, there is a caveat  that the defendant’s  domicile must be within the  Contracting states and the following jurisdiction basis:
 (i) Special jurisdiction
By the provisions of  Regulation,  the plaintiff may chose the forum-court for his case, and jurisdiction  will be accorded to the court first seised of the matter.  The special jurisdiction extends to particular cases, such as the  “…performance of the obligation in question, in matters relating to individual contracts of employment…”
The ECJ has, following the promulgation of the regime, warned that Article 5  should be “interpreted restrictively as a derogation from the general principle of domicile in Article 2.”  Consequently, in Custom Made Commercial Ltd v Stawa Metallbau GmBH, the apex court held, limiting the scope of the definition,  that the obligation in question, which is the subject matter of the dispute,  must be construed to mean the principal obligation within contract of the parties, and none other .
 (ii) Exclusive jurisdiction
The Regulation confers on certain designated courts certain jurisdiction.  The defendant must be sued in these courts within his domicile in the Contracting state per Article 16.
The full effect is illustrated in Re Hayward, where the determination of validity of title for immovable property in Spain by an Englishman domiciled in England was held outside Article 16.  The tenet of the Article is in line with English law, which would not assume jurisdiction over an immovable property situated abroad “even  if the defendant is domiciled in the UK.”
Different scenarios of complexities have surfaced since the inception of the Regulation, especially in cases of actions and rights in rem or personam and in matters of tenancy law within Contracting and non-Contracting states.  This is especially in the case of corporate entities where, under Article 53, they may have more than one domicile or seats. As a result, the courts have taken a narrow interpretation of the Article as seen in several cases.
One such type of case is intellectual property, which has itself raised further questions as to the enforcement of judgements within the Contracting states.  Indeed, and as have been indicated, it was litigation of intellectual property disputes that first recognised the  shortcomings of the  Brussels Convention in respect of the torpedo of lis pendens rule. In the case of  Molnlcyde AB, English court held tenaciously to its common law principle that proceedings on the infringement of intellectual property rights should commence in the jurisdiction of the state where the infringement occurred, whereas the Dutch believe that it should commence in the state where the patent was registered. There appears to be consensus, however, that enforcement of judgments are within the exclusive jurisdiction of “the courts of the Contracting state in which the judgment has been or is to be enforced.”
 (iii) Jurisdiction agreement
Article 17 lays out the formalities for the requirements of a jurisdiction agreement.  Such an agreement requires the formal consent of the parties that a particular court should have jurisdiction in the event of a dispute settlement case. The conditions attached thereto are: (i) that the prorogation agreement of consent must be in writing or evidenced in writing; (ii) the agreement must be in accordance with the custom of the parties; and (iii)  must be consistent  with the custom of the parties in international trade or commerce.
The import of Article 17 is that the court of  the jurisdiction of the Contracting state chosen must accept jurisdiction to the exclusion of all other states or courts, where the parties or one of the parties has domicile in one of the Contracting states. However, where none of the parties is domiciled in a Contracting state, there cannot be jurisdiction. The matter must   be remitted to the non-Contracting state, unless it wishes to decline.
The interpretation hitherto had been rather too strict. Thus in the Berghoefer GmBH case, a more liberal approach was adopted by the courts based on the fact that the intent of the  Article 17 is to protect the weaker party in inter-state commerce and trade.  The parties’ agreement must be such as not to also offend Articles 12 and 15.
 (iv) Submission to jurisdiction
The principle in this form of prorogation of judgment, as contemplated by the regime, is that the defendant, by submitting himself  to the court of a Contracting state wherein the plaintiff has commenced his action, confers jurisdiction on that court.  This will operate, except in cases where exclusive jurisdiction had been granted in Article 16.
A number of issues have arisen under this principle.  Clearly the court must be seised to determine whether it has jurisdiction and the scope and merits of it.  The determination of these questions must have regard to the “civil precedence rules of the court in question.”
The other concern is the lack of clarity as to whether the defendant should be domiciled in a Contracting state; although the scholarly opinion appears to be supportive of this view and consistent with the wordings of Articles 3-4, 16, 17, which insist on domicile in the Contracting state.
The final question pertains to  the issue and significance of putting appearance, whether the appearance is personal, by counsel or otherwise. The position seems to have been settled by  the ECJ in  Elefanten Schuh GmBH, where it affirmed that an appearance for the sake of arguing jurisdiction (whether as a preliminary or substantive argument) would not constitute submission.
Torpedo phenomenon and actions
At the introduction part of this paper, it was noted that lis pendens  was regulated by Article 27 of the Regulation. The element of the provision are clearly that lis penders will occur where proceedings involve “same cause of action and between same parties” (which may also have the same identity of interest), etc. In the Gubisch case, the court elaborated the meaning of same cause of action and same parties; as being consistent with the English definition of “object” of action.  And in Drouot, the question of identity of interest between parties was laid to rest as being within the ambit of the “national court to apply” to the effect that “…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.”
In the phenomenon of torpedo, the element of time is very crucial. Just when is lis pendens operationally effective?  As would be seen, Article 27 of the Convention leaves this question of procedural law to municipal systems with their differing approaches and interpretations as to when seisn occurs.  But the matter does not end there.  For instance, under the domestic code of Italy, the court is seised “…the day the summons is serve,” while in France, it is when the summons is “…registered with the courts.”  The English approach is an extension of the Italian procedure.  It is when process is made even without effecting service on the defendant.  Thus, an “English court was seised on service of the writ.”
The Brussels Convention failed to halt this forum shopping and race to court or acquisition of national advantage because of the limited definition of its Article 27 and therefore the effectiveness of his lis pendens.  However, the  Regulation I (Article 30)   addressed these problems by dropping the lodging-system and serving-system and introducing the concept of first public step.  It is not just enough to file!  The plaintiff must do more thereafter by “… taking the necessary…and reassemble steps to the proceedings.”
The effect of the operation of lis pendens can be discerned in two forms: the first is that it does initiate a compulsory dismissal of a second set of action; and by so doing causes the  invocation of the discretionary power of the court to refuse jurisdiction on the basis of forum non conveniens.”
3.1 Rolling back torpedo actions
A great deal of effort has been devoted to understanding the Brussels Conventions in relation to the parallel suits of same cause in the different Contracting states. As would be imagined, lis pendens meant to inject “judicial certainty” and ensure wise use of “judicial resources” have unintended  consequences in that its has given rise to the what is known as torpedo actions.
Literature reviewed indicate that a good start to addressing this problem is to examine the procedure of  first-come, first-served, which is the pillar of  lis alibi pendens rule as provided in Regulation.  Note that the Regulation grants national courts the powers to determine the seisin of a court in matters of lis pendens. Further examination of the development and application of the rule shows that the totality of approaches which have successfully aided the maneuvering  of torpedo actions, falls into two broad categories as follows:
(i) Innovative developments in case law in the area of application of the rule of  lis pendens; and.
(ii) the latitude given to domestic courts in the interpretation of the  first-come, first-served rule.
The combined effect of i) and ii) above is illustrated in the foregoing paragraphs:
3.1.1 The determination of meaning of  “same cause of action”  at municipal law level
Call it judicial acrobatics, but the Italian case-Paris District Court decision, controversial as it was, attempted to overturn torpedo actions. A suit had been filed in Italy for non-infringement, while simultaneously also in France for infringement.  The question was whether with regard to Article 27, the lis pendens rule could exist on the basis that both suits have “same cause of action.”  The French court applied the reasoning that Article 27 was operative  if  “the end the actions have in view” were similar. But the Italians made a distinction that a claim for non-infringement, and another for infringement have different end-objectives.
 3.1.2   The use of summary proceedings by  municipal systems
A criticism of torpedo is that it prolongs cases and leaves parties uncertain for a long time about their status.  However, by employing the tactical procedure known as  “kort-geding”  under domestic German/Dutch systems, cases can be consolidated and  summary decisions rendered, until substantive or principal issues in the cases are determined.  In this way torpedo actions could be circumvented based on valid pronouncements in the form of interlocutory orders of the court. These interim decisions  have the force of law and can also be appealed.
 3.1.3   Exemption to Article 27 and lis pendens rule
The principle has been established that where there is exclusive jurisdiction, the lis pendens rule of first-come, first-served can no longer apply and the second court so seised must have exclusive jurisdiction.  It is settled that Article 27 may be subject to such exception to the rule of lis pendens; and that any judgment given by a courts, where exclusive jurisdiction ought to have been inherent given, may not be recognised per Article 35.  This exemption is found to be a useful tool against torpedo actions.
 3.1.4 The exclusive jurisdiction clause
Article 23 promotes the concept of prorogation, i.e. where parties may prior-agree to a particular court or jurisdiction to settle future disputes arising out of their contractual agreement.  But Article 27 on which lis pendens is founded also made provision for exclusive jurisdiction.  Thus, where torpedo actions have been made, both Articles must be read to give effect to the object of the litigation vide the lis pendens rule.  This was the situation in the Continental Bank case where parties had prior-agreed to a settlement jurisdiction on a matter which by regulation regime was granted exclusive jurisdiction;  a UK  Court of Appeal determined that the exclusive jurisdictional clause must be subordinate to the wishes of the parties and “… dismissed the application of lis pendens.”  The ECJ has since overruled this position on the grounds that the proper approach will be for the court so seised to of its own, determine jurisdiction. That  in any case, upon proper interpretation, Article 23 does not grant priority to prorogation over exclusive jurisdiction.
 3.1.5 Declaratory relief
In most substantive matters within the jurisdictions of Contracting states, actions on performance takes precedence over those of declaratory reliefs or originating summons motions.  Because this distinction is not made evident in Article 27, the latitude exists for judges to determine priority and the application of lis pendens rule, especially where torpedo exists. However, there are other regimes such as Community Trademark Regulation, which empower the precedence rule in spite of the opening in Article 27.
 3.1.6   Abusive and lengthy proceedings
Torpedo actions  are in many respects delay-causing actions. An infringer of intellectual property, for instance, may launch a pre-emptive suit to buy time because all future actions must be stayed while the proceedings are on. In fact, a defendant who does otherwise, may be visited with a charge of contempt of court.  This, obviously, is not the intendment of  the Brussels 1 Regulation.
Although bereft with practical difficulties, some national courts, especially German, consider such extended proceedings as effectively setting aside the aims of lis pendens rule.  But the ECJ in the Gasser case, sees no such impediment, affirming  that the Regulation, by a combination of its Articles and particularly Article 21 does not permit derogation, no matter the length of proceedings.  The apex court reminds all parties that the continued success of the Regulation  is dependent on the trust of the Contracting states for each of the legal systems that make up the Regulation area.

•To be continued