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Gasser v MISAT
''Gasser v MISAT'' (C-116/02) was a decision of the European Court of Justice regarding the interpretation of the Brussels convention of 1968 ruling that a court chosen in a choice of court agreement should stay its proceedings -as any other court chosen second within the Brussels regime- until the court first seized had declared it did not have jurisdiction. The court's decision was considered problematic as it favoured the uniformity of application of the Brussels regime jurisdictional rules temporarily over party autonomy. Due to similar provisions in the 2001 Brussels Regulation and Lugano conventions the interpretation also effects choice of court agreements under those later instuments. However, in the 2012 Recast version of the Brussels I Regulation chosen courts can take jurisdiction, even if a court not chosen has been addressed first.〔Mentioned as a goal in Recital 22 of the Recast Regulation.〕
==Facts==
Austrian supplier Gasser and Italian distributor MISAT entered into a contract together for the supply of children's clothes. In the contract, they included a choice-of-court agreement, stipulating that an Austrian court have jurisdiction in case of conflict. However, when a dispute arose between the two parties, MISAT seised an Italian court to declare that the contract had been terminated, contrary to the choice-of-court clause they agreed on.
MISAT relied on Article 21 of the Brussels Convention, a convention to which all members of the European Community were party, and which regulates which court within those states has jurisdiction. The convention contains a ''lis alibi pendens''-rule: where proceedings involving the same issue and between the same parties are brought before the courts of different Member States, the court seised second must stay proceedings up until the jurisdiction of the court first seised has been established - after which the court second seised must decline jurisdiction if the court first seised is indeed found to have jurisdiction.〔Van Calster, G., European Private Law, Oxford, Hart Publishing, 2013, 106.〕 Consequently, Article 21 of the Convention establishes a type of "first come, first served"-rule: when there is a triple identity in parties,〔Case C-406/92 The Tatry, () ECR I-5439〕 object,〔 as well as cause of action,〔Case C 144/86 Gubisch Maschinenfabrik, () ECR 4861, §38.〕 the court that has been seised second will only be able to decide in the case when it has been decided in the first court that the latter has no jurisdiction. The Report Jenard cites the need to "facilitate the proper administration of justice within the Community” as the underlying idea behind this ''lis alibi pendens'' rule,〔Report Jenard, OJ (), C-59/41.〕 as irreconcilable judgments would obstruct such proper administration〔See the Court’s reasoning in Case C-406/92 The Tatry, () ECR I-5439, §31.〕 and ultimately be detrimental to the “mutual trust in the administration of justice in the Community".〔Recital 16 of the Regulation.〕 Consequently, the ''lis pendens''-rule can be considered as an expression of the Regulation’s search for both certainty and the preservation of mutual trust amongst Member States.〔Van Calster, G., European Private Law, Oxford, Hart Publishing, 2013, 107.〕
The problem however in the case at hand was that the parties had first made an agreement as to which court would have jurisdiction in case of conflict- namely an Austrian court. Consequently, Gasser brought the same case before the Oberlandesgericht (Higher Regional Court) Innsbruck in Austria, where the question was eventually passed on to the European Court of Justice of whether or not the ''lis pendens''-rule could override the parties' autonomous decision contained in their choice-of-court agreement and thus, if the abovementioned rule contained in Article 21 of the Convention was applicable or not.〔Gasser v MISAT〕
抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』
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