The EEC Convention on Jurisdiction and Judgments of 27 September 1968

Extract

The West German company, Gubisch Machinenfabrik AG, had sold an item of machinery to the Italian, Palumbo, domiciled in Rome, and sued the latter in the Court of Flensburg, West Germany, for payment of the purchase price. Subsequently, Palumbo sued Gubisch in the Court of Rome in order to have the contract declared void because Palumbo's offer had been withdrawn before it had reached Gubisch. In the alternative, Palumbo demanded rescission of the contract for lack of consent, or otherwise for delay indelivery. Gubisch submitted a motion in the Italian proceedings for lack of jurisdiction because of lis pendens, on the basis of Article 21 of the Convention. The motion was rejected by the Court of Rome, but on appeal the Italian Supreme Court submitted a preliminary question to the Court of Justice of the EC, which held that:

‘The concept of lis pendens dealt with by Article 21 covers the situation in which one party brings an action in a court of a contracting State for rescission of an international contract of sale, whereas an action of the other party for performance of the same contract is pending in a court of another contracting State’.