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Parallel Proceedings

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Collective Redress and Private International Law in the EU

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Abstract

Various rules in the Brussels I-bis Regulation aim to prevent parallel proceedings and—in the end—conflicting judgments. This is already done in an early stage, at the moment a certain court needs to decide whether it has jurisdiction (the Brussels I-bis Regulation provides courts with a ground to refuse jurisdiction in case another court for example already has jurisdiction). The idea of collective redress mechanisms is that a bundle of comparable matters are resolved in a single procedure. Given the fact that under some proceedings (opt-in procedures), not all parties to a mass dispute will be a party to the collective redress procedure, in what way can the rules in the Brussels I-bis Regulation in relation to parallel procedures be applied.

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Notes

  1. 1.

    See Case C-351/89, Overseas Union Insurance Ltd v. New Hampshire Insurance Co. [1991], ECR I-3317, para 16.

  2. 2.

    See also Stefanelli 2012, p. 153.

  3. 3.

    In the French version the ‘same object’ is explicitly mentioned. Although this is not mentioned in the English version of the Regulation, the English test must be interpreted as if both the same cause of action as the same object are explicitely mentioned. See Case C-144/86, Gubisch Maschinenfabrik KG v. Palumbo [1987], ECR 4861, para 14. See Briggs 2009, p. 315.

  4. 4.

    Briggs 2009, p. 315.

  5. 5.

    See Magnus et al. 2016, pp. 727–728. The owners of the cargo lately laden on board the ship ‘Tatry’ v. The owners of the ship ‘Maciej Rataj’ (Case C-406/92), [1994], ECR I-5439, para 2.

  6. 6.

    Although the individual victims are seen as ‘Beigeladenen’ in the model case procedure, they are not actually a party to the model case proceedings. Therefore in this book, the applicability of the lis pendens rule in relation to the model case procedure will not be analysed.

  7. 7.

    See Case C-351/96, Drouot Assurances v. CMI [1998], ECR I-3075.

  8. 8.

    See Case C-351/96, Drouot Assurances v. CMI [1998], ECR I-3075, para 25.

  9. 9.

    See Case C-351/96, Drouot Assurances v. CMI [1998], ECR I-3075, para 19. See also Magnus et al. 2016, pp. 727–728.

  10. 10.

    See also Tang 2011, pp. 126–127.

  11. 11.

    According to the ECJ, the procedural position of each party in both parallel proceedings is irrelevant. See The owners of the cargo lately laden on board the ship ‘Tatry’ v. The owners of the ship ‘Maciej Rataj’ (Case C-406/92), [1994], ECR I-5439, para 31.

  12. 12.

    See Chap. 7 for the situations in which the victims can be seen as parties to the WCAM proceedings.

  13. 13.

    This of course depends on whether the individual victims will use their right to opt out of the WCAM settlement. See the report of the British Institute on International Comparative Law on The Effect in the European Community of Judgments in Civil and Commercial Matters: Recognition, Res Judicata and Abuse of Process, p. 32. However, only after the settlement agreement has been made binding and as a result the WCAM procedure has ended can parties make use of their right to opt out. The opt-out right will thus have no influence on the use of the lis pendens rule.

  14. 14.

    Magnus et al. 2016, pp. 737–738.

  15. 15.

    The owners of the cargo lately laden on board the ship ‘Tatry’ v. The owners of the ship ‘Maciej Rataj’ (Case C-406/92), [1994], ECR I-5439, I-5479.

  16. 16.

    Case C-144/86, Gubisch Maschinenfabrik KG v. Palumbo [1987], ECR 4861.

  17. 17.

    See Briggs 2009, p. 338 and Research in Motion (UK) Ltd v. Visto Corp [2008] EWCA Civ 153, 2008 2 All ER (Comm) 650.

  18. 18.

    Briggs 2009, p. 337.

  19. 19.

    Briggs 2009, p. 337.

  20. 20.

    See Jenard Report, p. 41.

  21. 21.

    See AG Lenz in Case C-129/92, Owens Bank Ltd. v. Fulvio Bracco Industria Chemica SPA [1994], ECR I-117, para 25.

  22. 22.

    See AG Lenz in Case C-129/92, Owens Bank Ltd. v. Fulvio Bracco Industria Chemica SPA [1994], ECR I-117, para 76.

  23. 23.

    Since this is the only kind of judgment that can be received through a collective action.

  24. 24.

    See AG Lenz in Case C-129/92, Owens Bank Ltd. v. Fulvio Bracco Industria Chemica SPA [1994], ECR I-117, para 76.

  25. 25.

    It should, however, be noted that this provision is not a forum non conveniens or forum conveniens discretion. The question of which court could be the more convenient or appropriate does not arise. See Danov 2011, p. 121.

  26. 26.

    The same facts and rule of law and the proceedings have to be aimed at achieving the same end result.

  27. 27.

    The first procedure is, for example, a KapMuG procedure and the second one is an individual procedure of a party to the KapMuG. Another example is an individual procedure as the first procedure and a WCAM procedure as the second.

  28. 28.

    Although these judgments are not irreconcilable pursuant to the definition used in Article 29 Brussels I-bis, they are conflicting, as it is possible that in an individual case the perpetrator can be found not liable, whereas a WCAM judgment could force the perpetrator to pay monetary damages.

References

  • Briggs A (2009) Civil Jurisdiction and Judgments. Informa Law, London

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  • Danov M (2011) Jurisdiction and judgments in relation to EU competition law claims. Hart Publishing, Oxford

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  • Magnus U et al (2016) ‘Brussels I Regulation’. Sellier, Munich

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  • Stefanelli J (2012) ‘Parallel litigation and cross-border collective actions under the Brussels I-bis framework: lessons from abroad’. In: Fairgrieve D, Lein E (eds) Extraterritoriality and collective redress. Oxford University Press, Oxford

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  • Tang S (2011) ‘Consumer collective redress’. Journal of Private International Law 1

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  1. Supreme Court of the Netherlands, The Hague, The Netherlands

    Thijs Bosters

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Bosters, T. (2017). Parallel Proceedings. In: Collective Redress and Private International Law in the EU. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-186-9_8

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  • DOI: https://doi.org/10.1007/978-94-6265-186-9_8

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