EUPillar IAG v SAPM and J&K - Liège, 9 September 2010

Summary

S.A.P.M. won a contract to refurbish a blast furnace situated in Fos-sur-Mer (France). S.A.P.M. appointed a subcontractor, IAG. The contract between S.A.P.M. and IAG provides for the exclusive jurisdiction of the courts of Liège. IAG also appoints a subcontractor, J&K. Their contract contains an exclusive jurisdiction clause in favour of the courts of Osnabrück, in Germany. On 5 August 2009, S.A.P.M. brings proceedings against IAG before the Commercial Court of Liège, demanding the termination of the contract and the awarding of liquidated damages in the amount of €1,700,000. On 6 November 2009, IAG serves J&K with a third party notice and compulsory joinder/forced intervention. IAG then asks for a few measures for interim relief against S.A.P.M., including the appointment of a panel of experts. The Commercial Court of Liège decides it has no jurisdiction over the forced intervention of J&K, because of the choice of forum clause that has been agreed between the parties, but the court does grant the request for provisional measures in the case against S.A.P.M. IAG lodged an appeal against the first part of this decision. J&K relies on Art. 23 Brussels I to establish the exclusive nature of the jurisdiction granted to the German courts of Osnabrück by choice of the parties themselves. IAG believes regard should be had to the close relationship between the actions against S.A.P.M. and J&K respectively, invoking Art. 6(2) (third party proceedings) and 28 (related actions). The Court of Appeal finds that (i) Art. 23 takes precedence over Art. 6(2) and (ii) Art. 28 is only applicable to proceedings that are pending simultaneously. This article does not provide an independent ground of jurisdiction. Pursuant to Art. 31, Belgian courts could still take interim measures. However, the Court of Appeal finds that the interim measures demanded by IAG, in particular the appointment of a college of experts, are not “provisional, including protective, measures” in the sense of the Regulation, as defined by the European Court of Justice. The experts would be asked to shed a light on technical questions and the substance of the case. The Court of Appeal therefore agrees with the Commercial Court and confirms its decision to decline its jurisdiction with regard to the third-party action in warranty against J&K. Short critique: There is other Belgian case law which does accept that the appointment of an expert is a "provisional measure" within the meaning of Art. 31 Brussels I. See eg. KG Kh. Kortrijk, 6 August 2012