Spring/Summer 2018 Page 9 first court took an unreasonably long time to determine whether they had jurisdiction or a valid choice-of-court agreement existed. In both cases, the CJEU maintained, the EU court first seised retained exclusive jurisdic- tion regardless of their relationship, or lack thereof, to the actual dispute before them. As a result of these rulings, the Ital- ian Torpedo became firmly en- trenched as an undeniable, if unwel- come, part of EU litigation strategy in circumventing legitimate contrac- tual choice-of-court agreements. The tactic inevitably resulted in parties racing to EU member courthouses the mo- ment a dispute arose, and ultimately served to erode the valuable jurisdictional certainty and predictability underlying choice-of-court agreements generally. Disarming The Torpedo: The Recast Brussels Regulation 2012 By the time the EU fundamental legal struc- ture, codified as the Brussels Regulation, un- derwent amendment in 2012, the Italian Tor- pedo had made choice-of-court contract claus- es all but irrelevant. The supremacy of lis pendens meant that a choice-of-court agree- ment was essentially useless unless the desig- nated court was also seised first; and if you seised your preferred court first, there was no reason to have an additional contract agree- ment to that effect. However, the EU legal powers-that-be finally came to their senses in 2012 and gave choice-of-court agreements back the legitimacy they deserve. The recast regulation of course kept the lis pendens rule; the concept was, and remains, (Continued from page 8) the jurisdictional default rule in EU jurispru- dence.4 However, the amended regulation added an additional part, Article 31, specifically relat- ing to choice-of-court agreements. More im- portantly, Brussels 2012 explicitly made the lis pendens rule subject to this new section. Accord- ing to Article 31, where a valid and exclusive choice-of-court agreement exists and designates an EU member state court, all other EU courts must stay proceedings until the designated court decides if it has jurisdiction over the dispute.5 If the designated court determines it does have jurisdiction (i.e., the choice-of- court agreement is valid and applica- ble), all other EU courts must then de- cline jurisdiction.6 At first glance, it appears that Article 31 might apply only when the designat- ed court is also seised first, in accord with the general dictates of lis pendens. However, Recital 22, included in the Brussels 2012 Regulation as an interpretative aid, clarifies the following: (1) Article 31 is intended as an express exception to lis pendens—in other words, it applies where the choice-of-court designated court is seised after a different EU court, (2) the choice-of-court desig- nated court has priority to determine the validity of the choice-of-court agreement, and (3) if the choice-of-court designated court determines that the agreement is valid and applicable, it can pro- ceed with the case regardless of whether a differ- ent court seised first has ruled on jurisdiction. Taken together, these critical components of Arti- cle 31—as clarified by Recital 22—mean that the Italian Torpedo should no longer work as a means of circumventing valid and enforceable choice-of-court agreements. Essentially, under Brussels 2012, even if a choice-of-court designat- ed court is seised second, it still has the authority to consider whether it has jurisdiction over the lawsuit pursuant to the choice-of-court agree- ment. (Continued on page 16) Italian Torpedo “[P]arties racing to EU member courthouses the moment a dispute arose”