EUPillar S. NV v. H - C/06/025 - KG Kh. Antwerpen, 25 October 2006

Summary

A third party lodges an appeal against a decision concerning a maritime transport agreement, alleging that the President of the Commercial Court of Antwerp had no jurisdiction to grant interim measures and was not allowed to appoint an expert. At the destination in the Netherlands the goods got damaged. The bill of lading contained a jurisdiction clause which refers to the courts of Rotterdam. However, under Art. 31 of Brussels I, the courts of a Member State have jurisdiction to grant provisional or protective measures as may be available under the law of that State, even if the courts of another Member State have jurisdiction as to the substance of the matter. However, there should be a real connecting link between the subject matter of the measure sought and the territorial jurisdiction. This is the case most notably when the measures sought will at least partly produce their effects in the forum state. In the present case it was accepted that there is a real connecting link between the measure and Belgium, since the outcome of the expertise will produce an effect on S NV, the manager of the ship. The President of the Commercial Court also accepts that the appointment of an expert constitutes a provisional measure. Furthermore, the President of the Commercial Court believes the Belgian courts also have jurisdiction on the basis of Art. 2 Brussels I, based on the place of central administration or, in this case, the apparent place of central management of the defendant (i.e. applicant in the third party proceedings). Short critique The Court should have started by examining its jurisdiction under Art. 2 Brussels I: if the court has jurisdiction as to the substance of the case, it has jurisdiction to take any measures, including provisional measures and including the appointment of a court expert. There is no need to refer to Art. 31 Brussels I in such a case.