Global litigation - conflict of laws - Tatry case
Whether A can have the Belgian court cease the proceedings pending before it on the basis that parallel proceedings are pending in France depends on whether the case at hand fulfills the criteria of parallel proceedings, which is that the proceedings must involve “the same cause of action and [be] between the same parties” (Article 27, on parallel proceedings).
As clarified in the Tatry case, “It should be noted at the outset that the English version […] does not expressly distinguish between the concepts of ‘object' and ‘cause' of action. That language version must however be construed in the same manner as the majority of the other language versions in which that distinction is made”—that is to say, both proceedings must have the same object as well as the same cause of action.
The same cause of action comprises the facts and the rule of law relied on as the basis of the action. Needless to say, both proceedings rely on the same set of facts. However, since the legal basis of A's lawsuit is contractual damages, while the legal basis of B's is wrongful and tortious conduct, the rule of law relied on for both proceedings are different. Therefore, the first criterion of identical cause of action is not met, and as a result, the proceedings cannot be considered parallel.
[...] However, there are certain factors that play against Delta's annulment of award. Firstly, Paris being the seat of the arbitration, it would be highly unlikely for the Parisian courts to annul the award, unless the grounds for it are manifest, in view of Paris' pro-arbitration policy. In particular, an error of law is not normally accepted as a ground for annulment, as in the present case. Global Litigation and Conflict of Laws 2 Exam www.oboolo.com References Conventions - Rome I - Rome II - Brussels I - Brussels II - 1958 New York Convention - Convention on the Taking of Evidence Abroad in Civil or Commercial Matters Cases - Mietz v. [...]
[...] If they are, then recognition of the French judgment is not possible. Question 3 Although the reasoning relied upon by the court is not altogether nonsensical, I do not agree with the court's findings. The court essentially uses two arguments: firstly, that the preamble, as well as Chapters I and II of the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters Convention”) use permissive rather than mandatory language; secondly, that the opt-out provisions in Article 23 of the Convention would not make sense if the Convention was meant to be mandatory. [...]
[...] ii) The ramifications of the decision for French parties subject of a request for the taking of evidence for the purpose of proceedings conducted in the US are actually, at least technically speaking, limited. This is due to the qualifications that are present in the Convention, such as can be found in Articles 11 and 12. In particular, Article 11(a) states that such French parties may refuse to give evidence “under the law of the State of execution”. This essentially means that the Convention is effectual, only insofar as the requested State lets it be so. [...]
[...] Global Litigation and Conflict of Laws 2 Exam www.oboolo.com Question 3 Yes, Delta may seek annulment of the award. However, it should be noted that annulment of awards may only be sought at the seat of the arbitration, which, in this case, is Paris. We ought to take into consideration as well that there are usually time limitations as to the application to annul an award. Furthermore, with regards to the annulment of awards, the 1985 UNCITRAL Model Law on International Commercial Arbitration (and, by implication, the 1958 New York Convention) is the most common and central reference for its grounds. [...]
[...] Hence, the proceedings do not have the same parties either. On a supplementary note, we may also look to the purpose of Article 27 of Brussels I to make the application of the Regulation to this particular case doubly clear: Article 27 is aimed at preventing conflicting decisions (as expressed by Fentiman), and this cannot be the case in this pair of proceedings. It would be more appropriate to place the pair under Article 28, on related actions, since the outcome might be irreconcilable rather than conflicting. [...]
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