Jurisdiction for arrest in another EU Member State

Article 4 of the 1952 Arrest Convention provides for the physical arrest of the vessel within the geographical reach of a contracting state according to the national procedural rules of that state. The claimant may have multiple options, or be able to ‘forum shop’, but can the arrest order be enforced in another state where the ship is physically present? The recognition and enforcement conditions under the Brussels I Regulation (recast) must be examined.

However, there is an alternative mechanism within EU Member States to allow the arrest of the ship ordered by an EU Member State court in another EU Member State territory. In Allegro v. Fanty-GT, the Rotterdam court allowed ex parte leave to the owner of the Dutch-flagged pusher barge to arrest it in Germany or Austria due to an unpaid charter hire. The court granted the order for arrest because it was competent on the substance, according to the choice of forum clause included in the time charterparty. A conservatory measure for ownership rights was granted. The barge was not considered a ship within the meaning of the 1952 Arrest Convention, despite it flying a contracting state’s flag. The conservatory attachment was enforceable abroad but the court did not issue a request for delivery of the barge.

In Allegro v. Fanty-GT, it was provided that the judgment would be served on the debtor prior to enforcement. The court issued a certificate in accordance with Article 53 of the Brussels I Regulation (recast), under which ‘the court of origin shall, at the request of any interested party, issue the certificate using the form set out in Annex I'. The judgment was enforceable, and the German and Austrian judicial authorities had to enforce it since the formalities of the Brussels I Regulation (recast) were observed. According to previous CJEU case law, enforcement of such measures was not possible because they did not fall within the scope of chapter III of the Brussels I Regulation (recast). According to Article 2(a) of the Regulation, the requirements are that ‘the court issuing the measure has jurisdiction as to the subject matter of the proceedings and provided the measure is served upon the defendant prior to enforcement’ , However, Recital 33 coniines those measures ordered by an EU Member State court not having jurisdiction as to the substance of the matter to the territory of that Member State. As the Rotterdam court had jurisdiction as to the substance of the matter, this case demonstrates that an EU-wide judgment for arrest was possible, even though the vessel was not located in the Netherlands. As Jessen and Theocharidis point out, this would contravene Article 4 of the 1952 Arrest Convention and the effectiveness of the national procedural laws of any EU or non-EU state.^[1]

For example, in a hypothetical case an English shipper applies in England for a ship arrest in Italy. However, a warrant for arrest would require the vessel to be physically in England rather than in Italy, and the English courts would have no power under s 25 of the CJJA to grant interim relief. As in the previous Dutch case, in some continental systems it is possible to apply for the arrest of a vessel irrespective of its physical location. For example, if a shipper wants to arrest a ship in Spain, the vessel must arrive in a Spanish port; however, if the vessel moves to Demnark, the claimant may apply for arrest in Denmark as well. A Danish judge would then examine the conditions of the ship arrest under Danish procedural rules, even if the claimant tries to recognise the Spanish warrant in Spain. These are not irreconcilable judgments because they do not decide the merits of the case, and as protective measures are only applicable within the territory of each state. Therefore, the lis alibi pendens doctrine does not apply. If a claim form in rem is issued before a ship arrives at an English port, the claim form will expire one year after the date of issue, but there is the possibility of unlimited renewals. Thus, if the lis alibi pendens doctrine did apply, a foreign court could be indefinitely prevented from hearing the case because the English court would always have jurisdiction based on such claim form in rem, leading to ‘forum shopping’. The extraterritorial application of actions in rem within the EU falls within the scope of the Brussels I Regulation (recast).

The validity of the jurisdiction or arbitration clause for provisional measures

The effects and economic consequences of the arrest of ships and the recognition and validity of exclusive jurisdiction or arbitration clauses when the claimant issues a claim form in rem in an EU or non-EU state can vary, depending on the events involved.

Neither the Brussels I Regulation (recast) nor the Lugano Convention nor the Hague Choice of Court Convention tackles the issue of the validity of an arbitration clause. The Brussels I Regulation (recast) establishes requirements in Article 25, while the Lugano Convention requires a mere reference to the document containing the original jurisdiction agreement. Under the Hague Choice of Court Convention and the Brussels I Regulation (recast), the validity of such a clause is decided independently from that of the main contract, according to the lex fori and its conflict of laws rules. The effect of the applicability of such a clause on third parties is also decided by national law.

If there is a valid jurisdiction or arbitration agreement, other EU Member State courts have no jurisdiction over the substance of any dispute arising under the contract. Relief under Article 24 of the Brussels Convention cannot be provided for matters excluded from it, such as arbitration. The Contention will apply if the subject matter of court proceedings falls within its scope and the court proceedings are considered parallel to and not ancillary to arbitral proceedings. The parties may tiy to exclude court jurisdiction completely, including proceedings brought before national courts. In such a case, if the court's jurisdiction is validly excluded, the parties cannot apply to the court for even provisional or protective measures, including proceedings ancillary to the arbitration. In such a case, parallel proceedings would still be subject to the Brussels I Regulation (recast) if their subject matter fell within the scope of the Brussels Convention.^[2]

• [1] For more information, see Jessen & Theocharidis (n 67). 2 Theocharidis, 'Jurisdiction for Provisional Relief under the Brussels Convention in the Mantime Context’ (n3).
• [2] Christian A Heinze, ‘Antisuit Injunctions in Support of Arbitration Proceedings and the Brussels Regulation - The Approach to Be Expected from the ECJ’ (Seminar Series on Private International Law, British Institute for International and Comparative Law, 11 July 2007). 2 Aikens, Lord and Bools (n 25) ch 14. 3 Governed by the Civil Procedure Rules in England and Wales. 4 Aikens, Lord and Bools (n 25) ch 14. 5 ibid; The Bergen (No 2) [1997] 2 Lloyd’s Rep 710. 6 The Nordglimt [1988] QB 183 (Hobhouse J): [I] t is permissible and proper that there should be an arrest of a vessel in one jurisdiction in support of a determination of the merits of a dispute by a court of competent jurisdiction in another contracting state and to provide security for the satisfaction of the judgment given by that court. 7 The Tatty (nW)