Lloyd's Maritime and Commercial Law Quarterly
ANTI-EUROPEAN TEETH FOR CHOICE OF COURT CLAUSES
Continental Bank v. Aeakos
The Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 contains one rule which, for most contentious purposes, transcends all others: do not wait to be sued, but sue first. Article 21 allows1 the court first seised to hear a dispute, and forbids any other court to entertain the same dispute between the same parties. Given the pressure, measured in wasted time and wasted money, which can be inflicted2 by wrong-footing one’s opponent in this way, the advantage given to the litigant who is first out of the starting blocks is not one to be lightly foregone.
There are many practical lessons to learn from this rather blunt rule, but this Comment will address only two. The first point is not provoked by any reported case, but is believed to be an unremarked factor in a large number of cases. It is that the courteous solicitor’s habit of writing a letter before action is, from the client’s point of view, disastrous. In effect, it invites the opponent to snatch the
1. And probably requires. The question whether a court with jurisdiction under the Convention, and which has been called upon to exercise it, may decline to do so had been referred to the court in Ladenimor (Case C-314/92) (see Re Harrods Buenos Aires Ltd. [1992] Ch. 72); but the case has now settled and the Court of Justice will not be asked to give a ruling.
2. Thereby increasing the chances of settlement or submission by the opponent.
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