even though he makes frequent business trips to other countries. However where, as in Weber v Universal Ogden Services,262 there is no such permanent centre of activities – for example, because the employee worked for the employer as a cook, first on mining vessels or installations in the Dutch continental shelf area, and later on a floating crane in Danish territorial waters – the whole of the duration of the employment relationship must be taken into account. The relevant place will normally the place where the employee has worked the longest; but by way of exception, weight will be given to the most recent period of work where the employee, after having worked for a certain time in one place, then takes up his work activities on a permanent basis in a different place. In the analogous context of choice of law under Art 8 of the Rome I Regulation, the European Court has referred, in the absence of a centre of activities, to the place where the employee carries out the majority of his working activities; and, in the case of a person employed in the international transport sector, such as a lorry-driver or ship’s engineer, to the place from which he carries out his transport tasks and at which receives the instructions concerning the tasks.262a

The position where an employee is recruited by one company to work temporarily for an associated company abroad, and then to return to work for the initial employer in their home country, arose in Pugliese v Finmeccanica,263 which involved an Italian who had been recruited by Aeritalia to work initially for Eurofighter in Germany for at least three years, and who now sought to sue Aeritalia in Germany. The European Court ruled that, in a dispute between an employee and first employer, the place where the employee performs his obligations to a second employer can be regarded as the place where he habitually carries out his work when the first employer, with respect to whom the employee’s contractual obligations are suspended, has, at the time of the conclusion of the second contract of employment, an interest in the performance of the service by the employee to the second employer in a place decided on by the latter.The existence of such an interest must be determined on a comprehensive basis, taking into consideration all the circumstances of the case. Relevant factors may include the fact that the conclusion of the second contract was envisaged when the first was being concluded, the first contract was amended on account of the conclusion of the second contract, there is an organisational or economic link between the two employers, there is an agreement between the two employers providing a framework for the co-existence of the two contracts, the first employer retains management powers in respect of the employee, and the first employer is able to decide the duration of the employee’s work for the second employer.

Simultaneous actions

Chapter II of the Regulation frequently gives a plaintiff a choice of member states in which to sue. Hence, to reduce the risk of irreconcilable judgments being given by courts of different member states, and also to increase co-ordination in the exercise of judicial functions within the Community so as to promote litigational economy and avoid waste, Section 9 (Arts 27–30) of Chapter II regulates the problem of proceedings simultaneously pending in courts of different member states264 in respect of similar or related disputes.265 These provisions are based primarily on a simple test of

262 Case C-37/00: [2002] ECR I-2013.

262a See Case C-29/10, Koelzsch v Luxembourg [2011] ECR I-1595, and Case C-384/10: Voogsgeerd v Navimer, 15 December 2011; considered in Chapter 17 below.

263Case C-437/00: [2003] ECR I-3573.

264If both actions are instituted in the same member state, the problem is impliedly remitted to the law of that state, and in the UK s 49 of the 1982 Act leaves the matter to be dealt with under the principle of forum non conveniens.

265Section 9 does not apply where the first proceeding is confined to an investigative measure, designed to preserve evidence or establish facts relevant to liability to be determined in separate, subsequent, substantive proceedings; see Miles Platts v Townroe [2003] 1 All ER (Comm) 561 (CA).

chronological priority, under which the court subsequently seised is required or invited to defer to the court first seised, rather than on a judicial evaluation of the relative appropriateness or convenience of the two fora. In the case of similar actions, Art 27 imposes on the court subsequently seised a mandatory obligation to decline jurisdiction in favour of the court first seised.266 In the case of dissimilar but related actions, Art 28 gives the second court a discretion to stay its proceedings, or in certain circumstances to decline jurisdiction, in favour of the first court. However, in no case do these provisions authorise the first court to give way to the second court.267

Articles 27–30 apply regardless of the domicile of the parties to the actions, and even if the defendant in either or both of the actions is not domiciled in any of the member states.268 They remain applicable in cases where the existence of jurisdiction is governed by a specialised convention within the scope of Art 71, such as the 1952 Convention on the Arrest of Seagoing Ships, but the specialised convention contains no provision dealing with simultaneous actions.269 Similarly, Art 28 of the Regulation remains applicable to related actions where a specialised convention, such as the Geneva Convention 1956 on carriage by road, contains a provision dealing with similar actions, but contains no provision dealing with related actions.270 Article 30 now establishes that for these purposes a court is seised at the time when it issues the document instituting the proceedings (in England, the claim form).271

As regards similar actions, Art 27 provides that where proceedings involving the same cause of action and between the same parties are brought in the courts of different member states, a court subsequently seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established; and where the jurisdiction of the court first seised is established, a court subsequently seised shall decline jurisdiction in favour of the court first seised.272 As the European Court emphasised in Overseas Union Insurance v New Hampshire Insurance,273 Art 27 does not permit the second court, even where the jurisdiction of the first court is contested, itself to examine the jurisdiction of the first court, except possibly where the question is whether the second court has exclusive jurisdiction by virtue of subject matter under Art 22.274 Nothing in that decision lent any substantial support to the view that Art 27 did not apply where, as a result of an agreement

266Article 27 must be applied even if the second court considers that proceedings in the first country are excessively slow; see Case C-116/02: Gasser v MISAT [2003] ECR I-14693.

267See Cronos Containers v Palatin [2003] 2 Lloyd’s Rep 489. However, where Art 4 remits the jurisdiction of the first court to its own law, because the defendant is not domiciled in any member state, such remission includes any power conferred by the relevant national law to decline jurisdiction on grounds such as forum non conveniens.

268See Case C-351/89: Overseas Union Insurance v New Hampshire Insurance [1991] ECR I-3317.

269Case C-406/92: The Maciej Rataj [1994] ECR I-5439.

270See Sony v RH Freight Services [2007] All ER (D) 310 (Feb).

271See WPP v Benatti [2007] 2 All ER (Comm) 525 (CA). An additional claim for a different breach of the same contract, made by amendment in an already pending action, must be treated as a separate action, of which the court must be regarded as seised at the date of the amendment; see Underwriting Members of Lloyd’s Syndicate 980 v Sinco [2009] 1 All ER (Comm) 272. It seems that Art 30 applies to the determination of the time of seisin of both courts, whenever the action brought before the court that is considering the question of concurrent actions was instituted after the commencement date of the Regulation for its state, even if the action in a court of another member state was instituted at an earlier date; see Tavoulareas v Tsavliris [2006] 1 All ER (Comm) 109.

272By Art 29, this applies even where the actions come within the exclusive jurisdiction of several courts. The duty to stay under Art 27(1) applies where an appeal is pending in the country of the court first seised against a decision of that court, where in favour of or against its jurisdiction; see William Grant v Marie-Brizard [1996] SCLR 987, and Moore v Moore [2007] EWCA Civ 361 (CA). But Art 27 does not apply where the proceedings in the first court have proceeded to judgment, or have been

discontinued, between the time when the proceedings were brought in the second court, and the time when the second court determines whether it should decline jurisdiction; Art 27 applies where there are concurrent proceedings at the time when the second court makes its determination; see Tavoulareas v Tsavliris (No 2) [2006] 1 All ER (Comm) 130.

273Case C-351/89: [1991] ECR I-3317.

274This exception was applied by the English Court of Appeal in Speed Investments Ltd v Formula One Holdings Ltd [2005] 1 BCLC 455 (CA) in the context of corporate matters governed by Art 22(2). For a transitional exception, see Case C-163/95: Von Horn v Cinnamond [1997] ECR I-5451.

on jurisdiction between the parties, Art 23 conferred exclusive jurisdiction on the second court. Eventually, in Gasser v MISAT,275 the European Court gave a clear and unqualified ruling that under Art 27 a court second seised whose jurisdiction has been claimed under an agreement conferring jurisdiction under Art 23 must nevertheless stay proceedings until the court first seised has declared that it has no jurisdiction, thus overruling an indefensible line of English case law276 giving priority to Art 23 over Art 27.

The concept of the same cause of action has been construed widely. In Gubisch v Palumbo,277 the European Court ruled that Art 27 applies where one party to a contract brings an action before a court of one member state for the rescission or discharge of the contract while an action by the other party to enforce the same contract is pending before a court of another member state. It explained that both actions were based on the same contractual relationship, one being aimed at giving effect to the contract and the other at depriving it of any effect. Thus, the question whether the contract was binding lay at the heart of both actions. The subsequent action for rescission or discharge of the contract could be regarded simply as a defence against the first action, brought in the form of independent proceedings before a court of another member state. Although the two actions must have the same subject matter, this does not mean that the two claims must be entirely identical. Similarly in The Maciej Rataj,278 which involved damage to cargo carried under bill of lading contracts, the European Court ruled that an action seeking to have the defendant shipowner held liable for causing loss and ordered to pay damages had the same cause of action and the same object as earlier proceedings brought by the shipowner seeking a declaration that he was not liable for that loss. It explained that the actions had the same cause, being based on the same facts and the same legal rule, and the same object, since the issue of liability was central to both actions and the reversal in the position of the parties (as claimant and defendant) was immaterial.279 Conversely, as the European Court ruled in Ganter v Basch,280 for this purpose account must be taken only of the claims of the respective claimants, to the exclusion of defence submissions, including ones alleging set-off, raised by a defendant. However, an interpleader proceeding by a debtor is probably not similar to an ordinary contractual claim for the debt.281

In contrast, the concept of the same parties has been construed narrowly. In The Maciej Rataj,282 the European Court ruled that where some, but not all, of the parties to the second action are the same as the parties to the first action, Art 27 requires the second court seised to decline jurisdiction only to the extent to which the parties to the second proceedings are also parties to the first action. It does not prevent the second proceedings from continuing between the other parties.

275Case C-116/02: [2003] ECR I-14693. See also Evialis v Siat [2003] 2 Lloyd’s Rep 377; and Bank of Tokyo-Mitsubishi v Baskan Gida [2004] ILPr 26.

276See Continental Bank v Aeakos [1994] 1 WLR 588 (CA); Kloeckner v Gatoil [1990] 1 Lloyd’s Rep 177; IP Metal v Ruote (No 2) [1994] 2 Lloyd’s Rep 560 (CA); Toepfer v Molino Boschi [1996] 1 Lloyd’s Rep 510; Toepfer v Cargill [1997] 2 Lloyd’s Rep 98; Bank of Scotland v Banque Nationale de Paris 1996 SLT 103; Glencore v Metro [1999] 2 Lloyd’s Rep 632; and The Kribi [2001] 1 Lloyd’s Rep 76. Cf Toepfer v Cargill [1998] 1 Lloyd’s Rep 379 (CA); and Evialis v Siat [2003] 2 Lloyd’s Rep 377.

277Case 144/86: [1987] ECR 4861. Cf J P Morgan Europe Ltd v Primacom AG [2005] EWHC 508 (Comm), where Cooke J held that Art 27 does not apply, even where the dispute is between the same parties and relates to the same contract, if the first action is concerned exclusively with one obligation under the contract, and the second is concerned with other obligations under the

contract; for example, in the case of a loan, where the first action is brought by the debtor and seeks only the invalidation of the contractual provision concerning the interest payable, while the second action is brought by the creditor and seeks enforcement of contractual provisions preventing the debtor from selling assets without the creditor’s consent and requiring the debtor to provide financial information to the creditor.

278Case C-406/92: [1994] ECR I-5439.

279See also William Grant v Marie-Brizard 1996 SCLR 987; and The Linda [1988] 1 Lloyd’s Rep 175.

280Case C-111/01: [2003] ECR I-4207.

281See Glencore v Shell [1999] 2 Lloyd’s Rep 692. Cf Glencore v Metro [1999] 2 Lloyd’s Rep 632.

282Case C-406/92: [1994] ECR I-5439.

The consequent undesirable fragmentation of proceedings may in some cases be mitigated by Art 28, on related actions. The European Court also ruled that an action in rem against a ship must be treated for the purpose of Art 27 as an action against the shipowner or other person interested in the ship against whom the plaintiff would wish to proceed in personam if he entered an appearance.283 In Drouot Assurances v Consolidated Metallurgical Industries,284 the European Court accepted that the requirement under Art 27 that the parties to both actions must be the same does not eliminate all possibility of identification by virtue of privity – for example, between an insurer and its insured

– but it emphasised that such identification is possible only when, with regard to the subject matter of both actions, the interests of the persons in question are identical and indissociable. Such identification is possible between an assignor and an assignee of a contractual claim.285 It may also be possible between a company in solvent liquidation and its liquidator, as regards a claim by a creditor of the company,286 but not between a cargo-owner and its loss insurer in respect of a claim against a carrier, where there is a potential claim for damages greater than the sum insured.287

Article 28 applies to actions that are dissimilar but related. It provides that, where related actions are pending in the courts of different member states, a court subsequently seised may stay its proceedings, and may also, where the actions are pending at first instance, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof.288 By Art 28(3), actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.

The concept of related actions has been construed broadly. In The Maciej Rataj,289 the European Court ruled that actions brought in different member states against the same shipowner by owners of different parts of a bulk cargo, shipped under separate but identical contracts between the relevant cargo owner and the shipowner, seeking damages for contamination alleged to have occurred during the voyage, fell within Art 28. The Court explained that Art 28 covers all cases where separate trial and judgment would involve a risk of conflicting decisions, even if the judgments could be separately enforced and their legal consequences would not be mutually exclusive. Similarly, in Sarrio v Kuwait Investment Authority,290 the House of Lords declined jurisdiction under Art 28 over an English action in tort seeking damages for negligent misstatements by the defendant that had induced the plaintiff to enter into a contract with the defendant’s subsidiary, in favour of an earlier Spanish action seeking to hold the defendant liable on the same contract by piercing the corporate veil.291 Although in Réunion Européenne v Spliethoff’s Bevrachtingskantoor292 the European Court puzzlingly

283However, an admiralty limitation action brought by a shipowner and an action for damages brought against the shipowner by an injured party are not similar actions within Art 27, but related actions within Art 28. See Case 39/02: Maersk Olie & Gas v de Haan & de Boer [2004] ECR I-9657.

284Case C-351/96: [1998] ECR I-3075.

285See Kolden v Rodette [2008] 3 All ER 612 (CA).

286See Re Cover Europe Ltd [2002] BPIR 931.

287See Sony v RH Freight Services [2007] All ER (D) 310 (Feb). See also Mecklermedia v DC Congress [1998] Ch 40, where Jacob J refused to treat a licensor of intellectual property and his licensee as the same party for the purposes of Art 27.

288It is the law of the country whose court is first seised (not that of the country subsequently seised) that must permit consolidation; see William Grant v Marie-Brizard 1996 SCLR 987, and Sarrio v Kuwait Investment Authority [1999] AC 32. It has been held that the requirement of pendency at first instance applies only to the proceedings in the first country; see SNPAA v Boa, decided by the French Court of Cassation on 27 October 1992.

289Case C-406/92: [1994] ECR I-5439.

290[1999] AC 32.

291See also D v P [1998] 2 FLR 25; and Prazic v Prazic [2006] 2 FLR 1128 (CA).

292Case C-51/97: [1998] ECR I-6511.

suggested that there is no sufficient connection between claims by the same plaintiff against two defendants in respect of the same loss, if one of the claims is contractual and the other is based on tort, this dictum was subsequently abandoned in Freeport v Arnoldsson.293 However, there is no sufficient connection between claims for infringement of a European patent, granted for several member states, against several defendants, domiciled in different member states, each being sued for an infringement committed in the state of its domicile.294

The solution to the problem of related actions adopted by Art 28 is to confer discretionary powers on the second court. That court is authorised by Art 28(1) to stay its own proceedings, so as to enable it to have the benefit of the first court’s judgment before it reaches its own decision. It is also authorised, by Art 28(2), to decline jurisdiction altogether, to enable the whole matter to be determined by the first court. A third choice remains available, in that the second court may, after due consideration, refuse both to stay its proceedings and to decline jurisdiction in favour of the first court.295 The second court will then proceed to determine its action, without waiting for the first court to determine the first action. In that event, there may be a rush to judgment, since the first judgment on the merits, given by either of the courts, will qualify for recognition by the other court under Chapter III of the Regulation, for Chapter III makes no exception to the obligation to grant recognition and enforcement to judgments given in other member states on account of the pendency of related proceedings in a court of the state addressed.296

The English courts have traditionally claimed a discretionary power to restrain a party by injunction from commencing or continuing to prosecute proceedings in a foreign court, on the ground that the continuance of the foreign proceedings would be oppressive,297 or that the foreign action has been brought in breach of an agreement for English exclusive jurisdiction or arbitration. They continued for many years to assert such a power even in respect of proceedings in another member state within the scope of the Brussels Convention,298 despite the implausibility of the arguments that this was compatible with the Brussels Convention. However, in Turner v Grovit,299 the European Court gave a clear, emphatic and unqualified ruling that the Brussels Convention and the Regulation preclude the grant of an injunction whereby a court of a member state prohibits a party to proceedings pending before it from commencing or continuing legal proceedings before a court of another member state; and that this is so even where that party is acting in

293Case C-98/06: [2007] ECR I-8319.

294See Case C-539/03: Roche Nederland BV v Primus [2006] ECR I-6535. Contrast the rulings in Case C-145/10: Painer v Standard VerlagsGmbH, 1 December 2011, and Case C-616/10: Solvay v Honeywell, 12 July 2012; considered at p 503 above.

295See Research in Motion UK Ltd v Visto Corp [2008] 2 All ER (Comm) 560, where the English Court of Appeal emphasised that, in contrast to Art 27, which requires comparison of the claims made in the two proceedings, Art 28 also involves consideration of the defences. Moreover, Art 28 requires an assessment of the degree of connection, and then a value judgment as to the expediency of hearing the two actions together (assuming that they could be so heard) to avoid the risk of inconsistent judgments. Article 28 leaves it open to a court to acknowledge a connection, or a risk of inconsistent judgments, but to say that the connection is not sufficiently close, or the risk is not sufficiently great, to make the actions related for the purposes of the article. There are conflicting decisions as to whether under Art 28 the second court may consider the jurisdiction of the first court; see Morgan v Primacom [2005] EWHC 508 (Comm) and J v P [2007] EWHC 704 (Fam). For English discussion of the exercise of the discretion conferred by Art 28, see also per Mance J in Grupo Torras v Al-Sabah [1995] 1 Lloyd’s Rep 374 and Sarrio v Kuwait Investment

Authority [1996] 1 Lloyd’s Rep 650; per Rimer J in Trustor v Barclays Bank (2000) The Times, 22 November; and per Lawrence Collins J in Bank of Tokyo-Mitsubishi v Baskan Gida [2004] ILPr 26, at para 228.

296See Brasserie du Pecheur v Kreissparkasse Main-Spessart (1996) unreported, 14 May (French Court of Cassation).

297See SNIA v Lee Kui Jak [1987] AC 871, and Airbus Industrie v Patel [1999] 1 AC 119.

298See, as regards English jurisdiction or arbitration clauses, Continental Bank v Aeakos [1994] 1 WLR 588 (CA); The Angelic Grace [1995] 1 Lloyd’s Rep 87 (CA); Ultisol v Bouygues [1996] 2 Lloyd’s Rep 140; Toepfer v Cargill [1997] 2 Lloyd’s Rep 98; Donohue v Armco [2000] 1 Lloyd’s Rep 579 (CA); and The Kribi [2001] 1 Lloyd’s Rep 76. As regards oppression, see Turner v Grovit [1999] 1 WLR 794 (CA).

299Case C-159/02: [2004] ECR I-3565; on a reference from the House of Lords [2002] 1 WLR 107.