Page 8 courts. While the simplicity of the lis pendens rule is admirable, it soon became the bedrock of a con- troversial litigation strategy whereby a party facing a contract dispute would immediately file suit in any EU court of their choosing, often in a jurisdiction wholly unrelated to the parties and the contract at issue. By filing first, this party would not only dic- tate the initial legal venue, but would also preclude a choice-of-court desig- nated jurisdiction from hearing the matter until after the court originally seised determined whether or not it had the ability to take the case. This “torpedo” tactic would not prevent a designated court from ultimately hearing the dispute, but should the first court take a long time to deter- mine their jurisdiction over the dis- pute, it could render moot or ineffective any re- lief finally granted by that court. Exemplifying this problematic strategy, in stepped the Italian courts and the localization of the torpedo strat- egy. Torpedoing Choice-of-Court Agreements: The Lis Pendens Dilemma It began in 1997, when Italian attorney Mario Franzosi wrote an article about how the lis pen- dens rule could be used in patent infringement cases to block proceedings in other EU member states.1 If the infringing party immediately filed suit in Italian courts, Franzosi argued, the lis pendens doctrine would prevent any other EU courts from hearing the dispute until the Italian courts, not known for their speedy dis- position of cases, determined they lacked juris- diction. By the time the case actually made its (Continued from page 1) way to the designated court, he concluded, the years of ongoing infringement would essential- ly undermine the purpose of the lawsuit alto- gether. In 1999, Franzosi’s Italian Torpedo came to the forefront of EU jurisprudence as a way of cir- cumventing choice-of-court agreements. In the infamous saga formally known as Trasporti Castelletti, the torpedo proved effective even when the initially seised court clearly lacked jurisdiction over the lawsuit.2 The Trasporti dispute arose from a shipping con- tract containing a choice-of-court clause designating English jurisdic- tion. However, the breaching party brought proceedings in Italy before the case had been formally filed in England and, pursuant to the lis pen- dens rule, the English courts were required to refuse the case until the Italian court determined it lacked ju- risdiction. Unfortunately, and in line with Franzosi’s expectations, the Ital- ian courts lived up to their reputa- tion, taking an incredible ten years to deter- mine that they obviously lacked jurisdiction over the dispute pursuant to the valid choice-of- court agreement. Four years later, the Court of Justice of the Eu- ropean Union (CJEU) would explicitly validate the Italian Torpedo as an acceptable and legiti- mate litigation tactic. After a contract dispute arose between two EU companies, a lawsuit was immediately filed in Italy, despite the ex- istence of a choice-of-court agreement designat- ing Austrian jurisdiction. The resulting 2003 Gasser decision, rendered by a full CJEU court, held that the lis pendens rule was absolute in- sofar as it required any court subsequently seised to stay proceedings in favor of the first seised court.3 The court noted that this strict lis pendens interpretation applied even when the (Continued on page 9) Italian Torpedo FBA/OC “[T]he lis pendens doctrine would prevent any other EU courts from hearing the dispute until the Italian courts, not known for their speedy disposition of cases, determined they lacked jurisdiction.”