Page 16 Most importantly, and contrary to the CJEU’s pro-torpedo holding in Gasser, the choice-of- court designated court does not need to wait until a different court seised first rules it does not have jurisdiction before taking the case itself. Thus, on the facts in Gasser, the Austri- an court, as the designated court in the choice- of-court agreement, would have been able to take the case even while the Italian court, seised first, was determining whether it had jurisdiction. As such, the delay in the Italian courts would not have been effective in pre- venting the choice-of-court designated court from hearing the case and rendering relief in a timely and effective manner. Practical Takeaways: Disarmed But Not Destroyed Although Article 31 and Recital 22 of the Brussels Regulation 2012 may have alleviated much of the danger and uncertainty associated with the Italian Torpedo tactic, an ongoing awareness of its enduring impact and continued influence re- mains important for any attorney dealing with choice-of-court contract clauses where EU ju- risdiction is potentially applicable. Firstly, it behooves all non-EU lawyers to remember that even after the recast of the Brussels Reg- ulation, the concept of lis pendens remains the cornerstone of EU jurisprudence; and while choice-of-court agreements may provide an exception to this presumptive rule, it would be a grave mistake to underestimate its contin- ued supremacy in EU jurisdictional analysis. Secondly, it must be understood that although the Italian Torpedo may no longer prevent a choice-of-court designated court from taking (Continued from page 9) immediate jurisdiction over a dispute, it does not prevent a different EU court from none- theless maintaining simultaneous jurisdiction over that case. For example, if a choice-of- court agreement designates French courts, but an Italian court is seised first, the Italian court may ultimately determine that it does have jurisdiction over the matter, notwith- standing the choice-of-court agreement. Since the potential for concurrent jurisdiction ex- ists, it would be unwise for counsel to simply ignore an attempted torpedo of a choice-of- court agreement, Italian or otherwise. In- stead, recognizing and trying to address any potentially conflicting jurisdictional determi- nations between EU member courts at the outset remains advisable. Finally, practitioners dealing with EU choice- of-court agreements must always re- member to take care in drafting those contractual clauses. Ultimately, the Brussels Regulation 2012 will only disarm an Italian Torpedo where a valid and applicable choice-of-court agreement exists. If the choice-of- court agreement fails to meet necessary for- mality requirements, conflicts with another choice-of-court agreement between the con- tract parties, or is not applicable to the partic- ular dispute at issue, the protections of Arti- cle 31 and Recital 22 against use of the torpe- do tactic become worthless. Accordingly, the best counter-measure against the disruption and destruction of an Italian Torpedo remains one deployed well in advance of any actual dispute, in the form of a well drafted choice-of -court agreement. * Bradley J. Raboin is a Pepperdine Law grad- uate and California qualified attorney. He re- cently completed an LLM in International (Continued on page 17) Italian Torpedo FBA/OC “[T]he concept of lis pendens remains the cornerstone of EU jurisprudence.”