Civil and commercial matters: the meaning of ‘matters’

The larger part of the analysis of ‘civil or commercial matters’ pays attention to issues which arise close to the notional boundary between public and private law. But there are evidently some private law issues to which the Convention does not apply, even though it would be absurd to say that they were not civil or commercial in nature. The conclusion seems to be that they do not count as ‘matters’.

The most obvious example is judicial proceedings to enforce a judgment given in a private law dispute by the courts of a non-Lugano State. In Owens Bank Ltd v Bracco proceedings were brought in Italy and England to secure the recognition and enforcement of a judgment from the courts of St Vincent and the Grenadines. As the foreign judgment was given in a commercial dispute, it might have been supposed that the judicial processes in Italy and England to decide whether that judgment was entitled to be enforced were also proceedings in a commercial matter. It was held that they did not fall within the scope of the Brussels Convention. It was said that the Title of the Convention dealing with the enforcement of foreign judgments is confined to the judgments from courts which are bound by it. So it is, but it was nobody’s argument that this was the basis on which the St Vincent judgment took effect in the legal orders of England or Italy. The European Court actually said that ‘Title II of the Convention establishes certain rules of jurisdiction which, after laying down the principle that persons domiciled in a Contracting State are to be sued in the courts of that State, go on to determine restrictively the cases in which that principle is not to apply. So it is clear that Title II of the Convention lays down no rules determining the forum for proceedings for the recognition and enforcement of judgments given in noncontracting States.’ This cannot be defended: the rule which gives general jurisdiction to the courts of the defendant’s domicile would easily have covered the case. The real reason is more likely to be that where the substantive merits have been adjudicated by someone other than a judge in a court in a Convention State, the whole thing is res inter alios acta so far as the Convention is concerned. Something similar may explain why arbitration is expressly excluded from the scope of the Convention: the decisive determination is not that of a judge in a court to which the Convention applies. It may also reflect the principle that a ‘judgment on a judgment’ is not valid, so that a decision by English court that a judgment from St Vincent was entitled to be enforced in England did not produce an English judgment, itself then capable of enforcement under Title III of the Convention.^[1]

Proceedings between private parties

A claim by one private individual against another may be founded on rules of public law, and if it is, it will fall outside the material scope of the Convention. Where, for example, a claimant contended that its right to freedom of establishment under EU law had been wrongfully interfered with by another, proceedings for relief in relation to the alleged wrong could fall outside the material scope of the Brussels Regulation on the ground that the jus action's, the legal right relied on, was in essence a matter of public law, not of private law. The analysis is otherwise if the claimant relies on a cause of action which is obviously one of private law. If the claim is advanced as a common or garden claim in tort, it is likely to fall within the material scope of the Convention. Allegations that trades unions are committing tortious wrongs by exercising their alleged freedom to go on strike and interfere with the freedom of everybody else to go about their business, will be brought within the material scope of the Convention where the cause of action relied on by the victim of the trades union is part of the ordinary law of tort. Here also, the application of the Convention depends on careful analysis of the cause of action relied on, much more than it does on the broader ‘flavour’ of the disagreement or dispute. A claim brought to enforce rights and obligations forming part of competition law, generally regarded as being actionable in England in the form of a private law, tort, claim, is plainly brought in a civil or commercial matter.

• [1] See further on this, Chapter 33. 2 British Airways pic v Sindicato Espahol de Pilotos de Lineas Aereas [2013] EWHC 1657 (Comm). See also Viking Line ABP v International Transport Workers' Federation [2005] EWHC 1222 (Comm), [2005] 3 CMLR 29: on appeal to the Court of Appeal, a reference was made to the European Court, but it did not relate to this point. The proposition that a matter of public law may be relied on against a private individual or entity is not remarkable (C-438/05 International Transport Workers' Federation v Viking Line ABP [2007] ECR 1-10779), but that does not somehow convert it into a matter of private law. 3 C-18/02 DFDS Torline AIS v SEKO [2004] ECR 1-1417. 4 C-302/13 flyLAL-Lithuanian Airlines AS v Starptautiska lidosta Riga VAS EU:C:2014:2319, [2015] ILPr28. 5 814/79, [1980] ECR 3807. The analysis below will suggest that the Court has departed from its approach in Riiffer, but in C-292/05 Lechouritou v Germany [2007] ECR 1-1519 the Court expressed no dissatisfaction with the decision in Riiffer.