Opinion of Mr Advocate General Lenz delivered on 16 September 1993

1 Original language: German.

2 As is well known, this State, a member of the Commonwealth, is situated in the eastern part of the Caribbean (the main island, St Vincent, lies approximately 160 km west of Barbados and about 130 km to the north cast of Grenada). In 1990 its estimated population was 116000, covering a total area of 388 square kilometres (The Neu Encyclopxdia Britannica, Micropæedia, Volume 10, 15th edition, Chicago el al. 1992).

3 The concept of enforcement proceedings signifies, both here and hereafter, proceedings for a declaration that a judgment of a foreign court is enforceable, not execution proceedings, that is to say, proceedings for the compulsory enforcement of a judgment (for further details, see paragraph 15).

4 Mr Nano is the person who claims to have negotiated the alleged loan agreement with the defendants and to have handed over the money; Mr Layne is one of the directors of the plaintiff.

5 See the detailed account contained in Dicey and Moms on the Conflict of Laws, edited by L. Collins and others, 11th edition, Volume 1, London 1987, pp. 425 et seq. (Common Law), 477 et seq. (Administration of Justice Act 1920) and 490 et scq. (Civil Jurisdiction and Judgments Act 1982); also Cheshire and North's Private International Lau; edited by P.M. North and J.J. Fawcett, 12th edition, London/Dublin/Edinburgh 1992, p. 345 et seq.

6 This represents a form of actio ļitdicati, a familiar concept in Roman law and jus commune.

7 Section 9(2)(d) of the Administration of Justice Act 1920.

8 Sec section 9(2)(f) of the Administration of Justice Act 1920.

9 Section 9(4)(b) of the Administration of Justice Act 1920, in conjunction with RSC (Rules of the Supreme Court) Order 71, rule 9.

10 RSC, Order 71, rule 9(2): The Court hearing such application may order any issue between the judgment creditor and the judgment debtor to be tned in any manner in which an issue in an action may be ordered to be tried.

11 The Supreme Court Practice (1993), Volume 1, Part 1 (Lon-don 1992) refers in Note 71/9/2 to RSC Order 33, rules 3 and 4(2). Order 33, rule 3 provides: The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated. Order 33, rule 4(2) is worded as follows: In any such action different questions or issues may be ordered to be tried at different places or by different modes of trial and one or more questions or issues may be ordered to be tried before the others.

12 [1966] 1 QB 828. That judgment was given on the basis of the Foreign Judgments (Reciprocal Enforcement) Act 1933.

13 Summary of the judgment in The Times Law Reports, 29 August 1990.

14 The passage from the order of the High Court which is of interest here is worded as follows: That issues be tried between the Plaintiff and the Defendants as to whether the Registration Order and all proceedings subsequent thereto should be set aside on the grounds that the judgments proposed to be registered fall within one or more of the cases in which a judgment may not be ordered to be registered under Section 9 of the Administration of Justice Act 1920 that is to sav the cases set out in Section 9(2)(d) and 9(2)(f) thereof.

15 [1991] 4 All ER 833; [1992] 2 WLR 127.

16 [1992] All ER 193; [1992] 2 WLR 621.

17 Apart from the defendants, only the Commission and the United Kingdom have taken part in the proceedings before the Court of Justice.

18 The version of the Brussels Convention which is applicable here is the version as amended by the Accession Conventions of 9 October 1978 and 25 October 1982. The text of that version is printed in OJ 1983 C 97, p. 2.

19 Decisions in which the courts of one State declare a decision given in another State to be enforceable are also termed exequatur decisions.

20 As we have seen, the High Court further ordered that the question whether it would be contrary to English public policy to recognize the St Vincent judgment should be tried as a preliminary issue (see above, paragraph 10 and footnote 13).

21 See paragraph 4 above.

22 See the summary of the defendants' submissions contained in the judgment of the Court of Appeal (Parker LJ), [1991] 4 All ER 833 at 840a.

23 Those terms arc respectively defined in paragraphs 6 and 9 of the judgment making the reference. According to those definitions, they signify the proceedings for a declaration as to the enforceability of the judgment in England, on the one hand, and in Italy, on the other.

24 Paragraph 7 of the judgment making the reference.

25 See, for example, P. Schlosser, Doppelexequatur zu Schiedssprüchen und ausländischen Gerichtsentscheidungen, IPRax 1985, pp. 141, 143; J. Kropholler, Europäisches Zivilprozeßrecht, 3rd edition, Heidelberg 1991, Art. 25, paragraph 16.

26 This view is endorsed in Competence judiciaire et effets des jugements dans le marché commun bv G. Droz, Paris 1972, p. 270 et seq. (paragraph 437).

27 G. Droz, Ioc. cil. (footnote 25 above), p. 270 (paragraph 437); sec also, by the same author, Pratique de la Convention de Bruxelles du 27 Septembre 1968, Pans 1973, p. 62 (paragraph 138); R. Gcimcr, Anerkennung gerichtlicher Entscheidungen nach dem EWCÜheremkommen vom 27.9.1968, RIW 1976, pp. 139, 145; by the same author, Das Anerkennungsvertanren gemäß Art. 26 Abs. 2 des EWG-Übereinkommens vom 27. September 1968, JZ 1977, pp. 145, 148; by the same author. Internationales Zivilprozeßrecht, Cologne 1987, p. 472 (paragraph 2310); R. Gcimcr and R. Schutze, Internationale Urteitsanerkennung, Vol. I, 1st half volume, Munich 1983, p. 985; D. Martiny in: Handbuch des internationalen Zivilverfahrensrechts, Volume III/2, Tubingen 1984, p. 38 (paragraph 64); P. Gothot and D. Hollcaux, La Convention de Bruxelles dn 27 Septembre 1968, Paris 1985, p. 134 et scq. (paragraph 238); S. O'Malley and A. Layton, European Civil Practice, London 1989, p. 678 (paragraph 25.33); J. Kropholler, loc. cit. (footnote 24 above), p. 259 (paragraph 19); H. Schack, Internationales Zivilverfahrensrecht, Munich 1991, p. 339 (paragraph 936); P. Gotrwald in: Munchener Kommentar zur Zivilprozeßordnung, Volume 3, Munich 1992, Art. 25, paragraph 10. For another view, sec R. Schutze, Die Doppelexequiemns ausländischer Zivilurtetle, ZZP 77(1964), p. 287 et seq.; Dy the same author, RIW 1984, p. 734 et seq.; tor a doubting view, sec F. Jucngcr, La Convention de Bruxelles du 27 septembre 1968 et la courtoisie internationale in: Revue critique de droit international prive 1983, pp. 37, 48.

28 For confirmation of this, sec P. Gothot and D. Hollcaux, !oc. cit. (footnote 26 above), p. 135 (paragraph 239); J. Kropholler, loc. cit. (footnote 24 above), p. 259 (paragraph 16); H. Schack, loc. cit. (footnote 26 above), p. 340 (paragraph 936). For a different view, sec S. O'Mallcy and A. Layton, loc. cit. (footnote 26 above), p. 680 (paragraph 25.36). A conciliatory view is expressed by G. Droz, loc. cit. (footnote 25 above), p. 271 (paragraph 437), footnote 1 (who submits that a decision regarding an irtio judicati may only be enforced in another Contracting State if it has been given in compliance with the jurisdictional provisions of the Brussels Convention).

29 See paragraphs 34 et seq. and 44 below.

30 Report by Mr P. Jenard on the Brussels Convention, OJ 1979 C 59, p. 1, at p. 10. This view is confirmed by the Report of Professor P. Schlosser on the Convention on the Accession of Denmark, Ireland and the United Kingdom, OJ 1979 C 59, p. 71, at p. 82 (paragraph 23).

31 Sec the supporting view expressed by D. Martiny, loc. cit. (footnote 26 above). That author accepts — but without stating any detailed reasons — that decisions given in a Contracting State whereby a decision of a non-contracting State is recognized or declared enforceable do not constitute decisions in civil or commercial matters.

32 See in this connection the judgment of the Bundesgerichtshof of 4 June 1992 (NJW 1992, 3096). In that judgment, the highest German civil court states that proceedings for a declaration that a foreign _udgment is enforceable constitute an ordinary civil action on the basis of Paragraph 722 of the German Code of Civil Procedure, that is to say, normal civil proceedings (loc. cit., p. 3097).

33 As to the issues which may arise in such proceedings, sec paragraph 47 et seq., below.

34 See also in this regard G. Droz, loc. cit. (footnote 26 above), p. 334.

35 Article 57 provides that the Brussels Convention is not to affect any recognition and enforcement conventions in relation to particular matters.

36 Given that Article 57 of the Convention refers to particular matters, it is possible that that provision does not cover bilateral treaties of a general nature concluded between States. However, the previous version of Article 58 shows that the Br_ssels Convention (apart from the exception described in Article 58) does not affect such treaties either.

37 Judgment in Case C-365/88 Hitgen [1990] ECR I-1845, paragraph 17 (emphasis added).

38 Case C-314/92 Lademmor v Intercornfintinz. These proceedings also arise from a reference by the House of Lords for a preliminary ruling.

39 Jenard Report, cited above (footnote 29), p. 61. Sec also in this connection mv Opinion in Case 220/84 AS-Atitoleik Service v Malbé [1985] ECR 2268, p. 2270.

40 Sec paragraph 20 et seq., above.

41 Where, for example, enforcement in State A does not result in full satisfaction of the judgment creditor's claim, because the debtor does not possess sufficient assets in that State, the judgment creditor is of course quite at liberty, as regards the balance, to apply for enforcement in another State (in which the debtor possesses other assets). As to Article 4, see paragraph 41 and footnote 55, below.

42 It goes without saying that Article 18 of the Convention does not constitute a viable jurisdictional rule in cases such as this. According to that provision, a court of a Contracting State may in certain cases have jurisdiction if the defendant enters an appearance before that court. However, a judgment debtor finding himself in a position similar to that of the defendants in the present case will almost invariably contest an application for a declaration of enforceability, since he would otherwise have to reckon with the application being granted and the judgment being enforced.

43 Case 220/84 [1985] ECR 2267.

44 Case C-261/90 [1992] ECR I-2149.

45 Ibid, (footnote 43 above), paragraph 26. The official English translation is not yet available.

46 Ibid, (footnote 43 above), paragraph 27. Sec the Jenard Report, cited above (footnote 29), p. 36). The Jenard Repon for its part relies at this point on A. Braas, Précis de procédure avile. Volume I, 3rd edition, Brussels/Liege 1944, p. 422 (paragraph 808).

47 [1992] ECR I-2160, p. 2164.

48 Sec also A. Braas, loc. cit. (footnote 45 above), in which the author differentiates between execution (exécution) and a declaration of enforceability (exequatur). A more cautious view is expressed by P. Kayc in Civil jurisdiction and enforcement of foreign judgments, Abingdon 1987, p. 956 ct scq.

49 Sec J. Kropholler, loc. cit. (ffotnote 24 above), p. 156 (paragraph 3), and also the judgment of the Court referred to in paragraph 42 below.

50 Sec paragraph 30 above.

51 I acknowledge that a different view is taken by D. Lasok and P. Stone in Conflict of litus in the European Community, Abingdon 1987, p. 252: according to them, Article 16(5) is also applicable where the judgment to be enforced has been given in a non-contracting Stale.

52 Article 4 provides that if the defendant is not domiciled in a Contracting State, the jurisdiction of the courts of each Contracting State is in principle to be determined by the law of that State.

53 Loc. cit. (footnote 29 above), p. 15.

54 See the judgment in Case C-26/91 Handte [1992] ECR I-3967, paragraph 13.

55 Ibid, (footnote 53 above), paragraph 14 (the official English translation is not yet available).

56 Such a jurisdictional rule would have to apply generally to cases concerning declarations as to the enforceability of judgments given in non-contracting States. Consequently, it goes without saying that Article 4 of the Convention — which applies only to defendants who are not domiciled in a Contracting State — cannot fulfil that role.

57 See paragraph 54 et seq. below.

58 Sec the supporting view expressed by R. Gcimer in EiíGVÜ und Aufrechnung: Keine Erweiterung der internationalen Entscheiditngszustandigkeit — Aufrechntingsverbot bei Abweisung der Klage wegen internationaler Unzuständigkeit, IPRax 1986, pp. 208, 209; D. Lasok and P. Sīonc, loc. cit. (footnote 50 above), p. 197.

59 Sec paragraph 9 of the observations of the United Kingdom (a somewhat anomalous provision) and A. Struycken, The rules of jurisdiction in the EEC Convention on jurisdiction and enforcement of judgments in civil and commercial matters, in: Netherlands International Law Review 1978, pp. 354, 360 (Its proper place in the Convention is rather, as an Article 25A, at the beginning of Title III).

60 Sec the supporting view expressed by I. Schwandcr in Die Gerichtszuständigkeiten un Lugano-Übereinkommen, in: I. Schwandcr (editor), Das Lugano-Übereinkommen, pp.61, 92 (on Article 16(5) of the Lugano Convention, the contents of which arc the same).

61 Sec G. Droz, loc. cit. (footnote 25 above), p. 107 (paragraph 162).

62 As to Article 18, see footnote 41 above.

63 The answer to this, in my view, is that no provision is made as to such a hybrid creature in the convention (unpublished transcript of the judgment of 19 July 1990, p. 10).

64 Case C-351/89 [1991] ECR I-3317.

65 Ibid, (footnote 63 above), paragraph 14.

66 Ibid, (footnote 63 above), paragraph 16. A similar statement is to be found in the judgment in Case 144/86 Gtibisch Maschmenfabrik v Palumbo [1987] ECR 4861 (paragraph 8). See also the judgment in Case C-220/88 Dumez France and Tracoba [1990] ECR I-49, paragraph 18.

67 See P. Gothot and D. Holleaux, loc. cit. (footnote 26 above), p. 123 (paragraph 217); G. Muller in Der internationale Rechtsverkehr in Zivil- und Handelssachen bv A. Bulow, K.-H. Bockstiegel, R. Geimer and R. Schutze, Munich (as at 1991), p. 606/169; H. Gaudemet-Tallon, Revue critique de droit international privé 1991, pp. 769, 774.

68 This also appears to be the view expressed by A. Briggs in The Law Quarterly Review 1991, pp. 531, 534; he calls for a purposive construction of the Convention.

69 Since the Italian enforcement decision cannot itself be recognized and enforced in other Contracting States, the decision in question could — according to the view advanced here — only be that of the court seised of the Italian civil proceedings.

70 That provision was added to Article 57 of the Convention, becoming paragraph 2 thereof, pursuant to the Accession Convention of 26 May 1989.

71 As to Article 57, see footnote 34 above.

72 Article 20 provides that where a defendant domiciled in a Contracting State docs not enter an appearance to the proceedings and the court's jurisdiction is not derived from any oilier provision of the Convention, the court must declare of its own motion that it has no jurisdiction.

73 Loc. cit. (footnote 29 above), p. 140 (paragraph 240).

74 See the judgment in Gubisch, cited above (footnote 65).

75 However, contrary to the view expressed by the Commission, I remain of the view, in these alternative submissions, that Article 16(5) is not applicable to enforcement proceedings (see paragraph 39 above).

76 The second paragraph of Article 22 provides that a court other than the court first seised mav also, on the application of one of the parties, decline jurisdiction if the law of that court permits the consolidation of related actions and the court first seised has jurisdiction over both actions. That provision (which is not wholly easy to comprehend) plays no part in the present proceedings (see the wording of the third preliminary question) and does not therefore need to be discussed further here.

77 With regard to the points of view to be taken into account here, see the considerations in respect of the third preliminary question.

78 [1991] 4 All ER 833, p. 853 et seq. An issue estoppel means that a matter of fact or law determined by a foreign court may not be further contested before the English courts. See generally in this regard Dicey and Morris, loc. crl. (footnote 4 above), p. 432 et seq.

79 Accordingly, in our judgment there must be a power in the English court to stay the trial in England of the main issue whether the St Vincent judgment was obtained by fraud pending the trial of the same issue in Italy, It could be productive of great injustice to allow the issue to go ahead in England when the same issue could be better tried m Italy and the Italian decision could be determinative of the issue for the purposes of the English proceedings (loc. cit. -footnote 77 above - p. 855, at e and f)

80 In our judgment the English courts should adopt a communautaire, and not a national and chauvinistic, approach to the determination of this question (loc. cit. — footnote 76 above — p. 856 et seq.).

81 See paragraph 76 et seq. below.

82 Clearly, there does not exist the requisite concurrent exclusive jurisdiction to decide such issues which is needed in order for Article 23 to apply.

83 Loc. cit. (footnote 65 above).

84 See paragraph 42 above.

85 Loc. cit. (footnote 63 above), paragraph 16.

86 See in this regard the judgment of the High Court (Ognall J) of 31 January 1990 in the case of Virgin Aviation Services Limited v CAD Aviation Services, [1991] International Litigation Procedure 79, in which the court held that there was a strong presumption in favour of allowing an application for a stay (...signifies that the strong presumption where an application is made for a stay, lies in favour of the applicant — loc. cit., p. 88).

87 See in this regard the judgment of the Oberlandesgericht Karlsruhe of 4 August 1977, RIW 1977, p. 718 et seq. (Digest of case-law relating to the European Communities, D Series, I-5.3 - B 8).

88 See the judgment of the Hof van Beroep te Antwerpen of 18 October 1979, Belgische Rechtspraak in Handelszaken 1980, pp. 181, 187 (Digest, I-22 - B 2).

89 See the judgment of the Arrondissementsrechtbank 's-Gravenhage of 1 February 1985, Sehip en Schade 1985, pp.251, 254 (Digest, I-22 B 8) and the judgment of the Danish So- og Handelsretten of 5 September 1991, upheld by the judgment of the Højesteret of 19 February 1992 (Ugeskrift for Retsvæsen 1992, p. 403 et seq.).