3.

Let me say straight away that Article 21 cannot be interpreted as the national court proposes. I would exclude in particular the proposition that that provision lays down a concept of lis pendens which is valid for the legal systems of the six Contracting States and, even more, that the concept is based on a concept of the institution of proceedings coincident with the lodging of the originating document. Let us leave aside for the moment the obviously marginal argument derived from the German text of the Convention. A problem such as the one before the Court can only be resolved by (a) ascertaining what is meant by lis pendens in the context of Article 21, and (b) examining the six legal systems to see if they provide a uniform rule in this case and, therefore, if a uniform rule of law can be found in Article 21. Let us begin therefore with (a). The concept of lis [alibi] pendens implies, on the one hand, that proceedings involving the same cause of action have been brought before different courts and, on the other, that there is a criterion for deciding which of the two courts is to be “master” of the proceedings. However, those criteria vary greatly. An English court, for example, can “disregard the fact that proceedings may already be pending before foreign courts” and can even “exceptionally... refuse to hear or decide a case, if they believe it would be better for the case to be heard before a court having equivalent jurisdiction in another State ... because this would increase the likelihood of an efficient and impartial hearing of the particular case” (see Schlosser Report, Official Journal, C 59, 5. 3. 1979, p. 97). As has been seen, however, the Brussels Convention employs the criterion of priority. It therefore resolves the conflict before the court to the disadvantage of the “court other than the court first seised”. That, moreover, is the rule by which the national court must abide. However, what does “court other than the court first seised” mean? The question presupposes a definition of the moment at which proceedings are initiated and there are in theory two conceivable ways of carrying out that task. The first is to identify that moment without taking account of the many substantive and procedural effects which the various legal systems attach to it and the second is to determine it on the basis of the effects of a lis pendens and therefore deny jurisdiction in the proceedings to the court seised later. In my opinion, the first method leads nowhere. Its purpose is to establish an autonomous and neutral concept of the institution of proceedings. It is futile, however, to seek support for that proportion in the Convention itself. The concept to which Article 21 refers when it speaks of “court other than the court firt seised” is, on the contrary, variable and divisible into its constituent parts according to the effects which are sought to be obtained from it, and the national legal systems offer us many examples of this. Let us take German law. When it is a question of time ceasing to run for the purposes of a period of limitation, reference is made purely to the lodging of the document initiating the proceedings. When it is a question of identifying the lis pendens, that is, of saying which court is “master” of the proceedings, it is service of that document which is decisive. For two different consequences, therefore, there are two different concepts of the institution of proceedings. I pointed out that, in the view of the Oberlandesgericht, a different conclusion can be drawn from the German text of Article 21. By defining anhängig (that is, pending from the moment of lodgment) as what Article 22 calls erhoben, it would appear to be establishing an autonomous concept of the institution of proceedings. I do not agree. I believe that the authors of the Convention did not employ the two terms to indicate different things. Nor did they use anhängig to lend credence to the idea that, for the purposes of lis pendens, proceedings must always and everywhere be considered initiated by the lodgment of the necessary document. Three factors militate in fact against the doubts of the national court. The first is that the distinction made in the German version is not to be found in the French, Italian or Dutch versions. The second is that a lis pendens docs not arise in any of the other five countries prior to service of the document initiating proceedings upon the other party. The third is that, in German law itself, a lis pendens arises, as I have already said, from service of the document originating proceedings and that law relies upon the earlier moment of lodgment for various other purposes (such as, in certain cases, to stop time running for the purposes of limitation periods).