Yearbook of European Law - Vol. 14

By Francis Geoffrey Jacobs | Go to book overview

The Brussels Convention

ADRIAN BRIGGS


I. Owens Bank Ltd v Bracco and Bracco Industria Chimica SpA

1

The decision in Owens Bank takes an uncertain step towards further defining the outer edges of the Convention in an area where there was no explicit limitation of the scope of the Convention ratione materide. A dispute had arisen between the Bank and Dr Bracco. According to the Bank (which was incorporated under the law of St Vincent and the Grenadines), it had lent to Dr Bracco and his company, Bracco Industria Chimica SpA (both of whom were domiciled in Italy), the sum of Sfr 9,000,000. It had not been repaid, had brought proceedings in the courts of St Vincent for damages, and had obtained judgment in its favour. According to Bracco, by contrast, there had never been any such loan; the documentary evidence given in support of it was forged, and the entire claim was a cock-and-bull story.

The Bank had proceeded to seek to enforce its judgment in Italy against Bracco assets. In the course of that attempt, judicial proceedings were instituted to determine whether the St Vincent judgment was entitled to be enforced in Italy; and in the course of these, the allegations of fraud and forgery were to be investigated.2 At a later date, the Bank sought also to enforce its judgment in England by registration under the Administration of Justice Act 1920.3 Upon the application of Bracco, and given the appearance of fraud, the English court concluded that it was necessary to conduct a separate trial to determine the truth behind the allegations of fraud. But as this question had been raised in the Italian judicial proceedings, which were instituted well in advance of those in England, the House of Lords referred three questions to the Court. These asked whether Articles 21 or 22 of the Convention required it to dismiss, or permitted it to stay, the English action. The Court did not get that far: it answered that the Convention had no application to proceedings of the type pending in

____________________
1
Case C-129/92 [ 1994] ECR 1-117. Decision of the Sixth Chamber. For the English proceedings leading up to the reference by the House of Lords, see [ 1992] 2 AC 443.
2
There were also separate proceedings in Italy concerning the allegation of criminal forgery. As a result of these, most of the essential documentary evidence was detained by the Italian judicial authorities.
3
The Act provides a mechanism for registration of judgments from certain countries and territories of the Commonwealth. In substance the grounds for registration are identical to the common-law grounds for recognition; and only the mechanics are different.
© Adrian Briggs, 1994. Fellow of St. Edmund Hall, Oxford.

-557-

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