21 June 2016

Oxford Business Law blog cites article by Daan Beenders and Wouter Hofstee

The Oxford Business Law Blog has published an article  by Daan Beenders and Wouter Hofstee, in which they describe the relevance of procedural law for strategic considerations in international litigation. An example is the launching of a “torpedo” by which a procedural party can pre-emptively influence the forum where litigation will take place.

The Brussels I Regulation (recast) (EU) 1215/2012 (Brussels I) contains rules of private international law to determine which courts have jurisdiction over claims in European civil and commercial matters. The rules on jurisdiction set out in Brussels I have a wide scope: several courts may have concurrent jurisdiction over the same claim or claims. This means that in certain circumstances a party may select a court from among severally objectively competent courts that is from a strategic perspective considered the most appropriate (forum shopping). Forum shopping is not reserved only to (potential) claimants/injured parties. A (potential) defendant/tortfeasor may also exert influence on the forum where an action is brought by proactively seeking negative declaratory relief, or in other words, filing a negative action (in practice also referred to as ‘launching a torpedo’). In the paper Daan Beenders and Wouter Hofstee recently authored, ‘The first blow is half the battle; the ‘torpedo’ in (international) legal proceedings’, they discuss the strategic use of negative actions in cartel damages cases before Dutch, German and English courts and analyze how courts in these countries deal with pre-emptive negative actions that were brought earlier in a different member state.

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To read the full article in The Oxford Business Law Blog, click here.