 Thank you very much for that indeed. I want to thank all the organizers as many have done But I don't think we can have a surplus of gratitude in the direction of the organizers for this conference I also want to thank the reviewers from the journal We have already waded through this particular paper and have provided us with some very useful feedback It's wonderful to be back in Cambridge I spent three years living just over the other side of Harvey court where the barbecue Will be so it's nice to be back You'll notice that we have a double billed paper von black my good friend and colleague My co-author on this paper and I are billed to talk about this von is not here And that was always part of the plan von is much more Mentally conscious than I am and so his carbon footprint didn't allow his travel from North America to England I'm I guess Crueler to the planet that he is so I'm here And so I'm happy to be here frankly I am though as Kevin mentioned a little distracted at three o'clock local time the Supreme Court of Canada rendered a fairly important decision that we've been waiting on for nine months And in paragraph 67 the court explains that not only am I wrong, but I am spectacularly wrong On a point that I set out in my text on conflict of laws in in 2010 I'm in the process of starting to revise that book And so that will be my opportunity to actually explain back to the court that I'm not wrong and I'm going to stick to my guns. I think on on the point I'll allege that they got it wrong for whatever benefit that does me, which is probably none Let me start I guess by saying a little bit very generally about a forum selection clauses Because there's some ground rules. I think we collectively know fairly well We're of the view that that forum selection clauses should be presumptively enforced And we think I guess or there's a there's a school of thought I suppose it says forum selection clauses or contractual clauses like any other They're part of a contract their terms of a contract We should give them effect like we give effect to other terms of a contract And that efficiency and certainty and fairness all argue in favor of enforcing forum selection clauses But if we're sticking to our understanding of basic contract fundamentals We also run up against this notion of privity of contract And I almost didn't make it here for this conference because what I didn't know was that one of the criteria for being allowed into the country Was that the people at border force and that's a scary name for me as a canadian It sounds like something donald trump would create to monitor his american borders And the people at border force actually won't let you in if they don't like the thesis of the proposal That you're presenting at the conference you're attending so I got to do a very detailed discussion with the fellow about Why I was coming what my topic was what my contention was and he looked at me So I said well my contention is I'm going to talk about the extent to which form selection clauses can find non-parties And he said but they're non-parties privity means That they can't be found and I practically picked up my luggage and headed back to the plane But I managed I managed to convince him that there was at least some benefit to hearing me out on the point And so you get to hear me out on on the point And we're looking at the paper is filled with a number of hypothetical scenarios We don't have cartoony figures like one of the earlier papers that describe you to the scenarios But the scenarios illustrate the number of different ways That form selection clauses can have effects on at non-signatories And those effects can depending on the scenario either be a burden Or a benefit to the non-signatory they can be a burden in that the non-signatory might end up being Subjected to a jurisdiction That absent the clause they couldn't be sued in that that would be a burden flowing from the clause Another burden would be that as plaintiff the non-signatory Now if caught by the clause would be precluded from suing in fora in which it otherwise might have been able to bring proceeding But correspondingly there will be scenarios where there will also be benefits that can flow to the non-signatory if the clause Is held to apply both by permitting the non-signatory to now sue in A forum that otherwise would have been unavailable right the clause creates an opportunity For the non-signatory to bring proceedings otherwise in which it couldn't proceed And it also creates them the non-signatory to advance as a defendant arguments against being sued in a particular place On the basis among other things that they really should be being sued in the other place the place that's set out in the clause In other words the benefits that we typically think flow to contracting parties to jurisdiction clauses or form selection clauses And what the article picks up particularly is some recent american cases That look at something called a closely related test or a closely related Doctrine And so there were american court decisions that say that a non-party to a Form selection clause can nonetheless get either the benefit or the burden as the case may be of that clause If that non-signatory is closely Related and we'll have to explain a little bit more about what that means and how that test might operate And so that's our that's what we're playing with in the in the article We're looking at the extent to which that this closely related test could get picked up in Canada And looking at whether a canadian court because this has not happened in a canadian decision yet There have been mention of the idea, but it hasn't actually been implemented by canadian courts So this closely related test invites a consideration of whether a form selection clause could get this broader Meaning or this broader application And it goes beyond not only this idea of a close connection right as closely related tests But there are also american cases that have adopted a related but different doctrine Which is that a non-signatory can be held to be bound to a form selection clause In the context of which called a global transaction or a series of interrelated or interconnected transaction There's two different bases that the american cases are playing with and in both of them broader extension is being given beyond simply the contracting parties And we might we might ask I guess at the beginning Why what's a what's the rationale for that because as the person at border force fairly quickly cottoned onto That's just violative of privacy and we could just leave it there We could just say there's there's nothing that would overcome that particular hurdle what the american cases have have said is the closely related rationale Can and should be justified On the basis that if we didn't extend the scope of the form selection clause to closely related entities Then these affiliated entities whether they're subsidiary corporations, whether there are officers of corporations Whether they're individual shareholders of closely held corporations If entities like these in these close relationships were not treated as bound by the form selection clause Then the form selection clause could be avoided By strategic choices made by parties as to which claims to choose to advance And which parties to either have advanced the claim or which parties to sue as defendants So tactically you could overcome or avoid the effect of a form selection clause By cleverly structuring your claim And what the court in the us a case for example called adams and rain tree has noted would be Far from the notion that giving extended scope to these form selection clauses would somehow erode Ideas of certainty and predictability It's actually the other way around it will erode the certainty and predictability that we would hope to get from form Selection clauses if we don't in these certain categories of cases give them this extended effect So as to have them apply to non signatories The global transaction basis is different and and the rationale for the global transaction basis is generally understood in the american cases to be efficiency in the litigation process And one of the key decisions in this area is by justice posner Who as many of you will know has a lot to say and to know about efficiency in the litigation process generally He was dealing in a case called american patriot insurance with a case where there was a shareholders agreement with an exclusive form selection clause in favor of premuda There were a number of other agreements related to the proceedings that didn't have a corresponding form selection clause And justice posner in confirming the correctness of the lower courts granting of the defendants motion to dismiss space in the clause He said the contracts including the shareholder agreement are a package The shareholder agreement happens to be the only site of the form selection clause But no reason has been suggested for why the parties would have wanted disputes Under that agreement to be litigated in premuda, but not disputes under the other pieces of the jigsaw puzzle So he identifies squarely an efficiency element On behalf of the parties themselves, this is what the parties even though they didn't document it this way This is what the parties would want for the purposes of litigation efficiency But in addition to the party efficiency issue The case is also in the united states pick up on public administration efficiency That is that there are public costs associated with litigation generally That a multiplicity of proceedings is to be avoided And a global transaction rationale Allows for litigation to get concentrated into a single forum Flowing out of a single factual matrix, even though it involves multiple parties and multiple claims And we've seen that in other areas of the law. That's not unique to this area of the law That is in fact one of the stronger reasons why in certain cases an exclusive Jurisdiction agreement even between contracting parties might not be given effect In order to avoid what otherwise would end up being a multiplicity of proceedings The paper then goes on To think about whether we could break this down and see whether the analysis might differ Depending on the context in which it arises under Canadian law So we look at the forum non-convenience context the anti-suit injunction context And the context of taking a jurisdiction Simplicit because we wonder about whether the operation of how this might end up working in Canadian law might differ depending on the context What we end up saying The the jurisdiction taking context is the the tougher one I suppose for for reasons which which I'll explain In the forum non-convenience context and in the anti-suit injunction context A judicial decision is ultimately a matter of discretion All right, the court is exercising its discretion whether to stay proceedings or it's exercising its discretion whether to grant an anti-suit Injunction and in those discretionary decisions It's very common to see courts pointing to a wide Nearly unlimited range of possible considerations as to why it might reach the decision it does And there's no reason why those considerations could not include A forum selection clause even a forum selection clause between one group of parties that might not necessarily encompass all of the possible parties So it wouldn't surprise us in the context of weighing out a bunch of connecting factual elements And coming to a discretionary decision that a court might say Well, even though you're not strictly speaking apart even though you're not bound by the terms of this forum selection clause You're still going to be affected by it because of all of the factors that we are considering and Weighing and so in a sense in that context the court can duck a little bit The question of whether we would say the clause binds The non-party and in fact the court can slide by that question by simply saying well the clause will have an effect on The non-party or the non-signatory because of the way that that open-ended or open-textured discretion operates Jurisdiction in contrast operates differently and it's not a matter of discretion And so it's a legal question and the court has to actually elucidate a legal basis for taking jurisdiction And the Supreme Court of Canada recently has been on a run of insisting on a greater degree of clarity And certainty in understanding what the rules are for the taking of jurisdiction So the fuzzier kind of logic that might be all right in this weighing of factors in the Foreman convenience or the anti-sudent junction context Is less likely to fly In the context of a court asserting that it will take jurisdiction over a non-contracting party based on a forum selection clause That it's not signatory to One of the other things that flows out of the the paper is I come back to this idea that we started with at the beginning Adrian Briggs for example it is fond of making the argument that Jurisdiction clauses are clauses like any other they're clauses of a contract until we give them effect the way we would give Any cause in a contract effect We differ from that position We think that there is something distinctive about forum selection clauses about jurisdiction causes Such that they do in other contexts get treated differently from other contract terms And if we can make out that claim Then that helps us buy into these american doctrines that also treat jurisdiction clauses differently from other clauses by giving them this broader effect to extend them to non Parties in circumstances where they wouldn't extend any of the other terms of the relevant contract to non parties And one of the leading examples of this of the way in which we see jurisdiction clauses has just been different sorts of contractual terms Is in the strong cause test which is something that operates in in canada in connection with jurisdiction agreements We borrowed it from the english common law So it will be it will be relatively known over over here And in one sense we might think that this strong cause test is to be lauded because of how powerful it makes jurisdiction Agreements, right? We're going to give effect to jurisdiction agreements Absent strong cause for doing so but a contract scholar would back up and say well Hang on if you tried to tell me that you're going to give the other terms of the contract effect Absent strong cause for doing so they would think that was quite a significant Derogation from contract right there are bases for not giving effect to contract terms And we know many of them things like fraud or duress or unconscionability But we wouldn't suggest that we could simply point to a set of other good reasons or factual connections And thereby not give effect to a particular Substantive term of a contract So it seems quite different when we're analyzing a jurisdiction clause to say we will let some of these pragmatic or efficiency based concerns Allow us to not give effect to a forum selection clause in certain circumstances So it does look like a different sort of term Another example certainly in the canadian context where this looks like a different sort of term is in respect to breach Right, it's a strange kind of contractual term that doesn't seem to attract damages for breach Right, and I know that's an issue in the english context And there are cases in the english context that try to argue about whether you can get damages for breach of a Forum selection clause, but that's just not even on the canadian rata as to whether you could get damages for breach of the term There's an interestingly enough there's an extended discussion of this in an article in the the journal that's hosting our very conference back in 2008 It was an article about agreements on Jurisdiction and choice of law it was a review article about Adrian Briggs's book by that name And Briggs is championing his view that these are contractual terms like any other and the review actually went on to say There's more to it than that that it isn't just purely a matter of private law or contract law There are public law concerns. There are efficiency concerns. There are administration concerns that make Forum selection clauses somewhat different So final thing I'll say before I draw this to a close I suppose then and something else that the paper plays with coming back to this idea of Jurisdiction being perhaps the more difficult way to see how we might integrate Saying that a forum selection clause binds a non-party Is what if we're going to do that if we're going to take jurisdiction over a non-party based on a jurisdiction clause That they're not from signature or two What's our theory for doing that? All right? What's our what's our legal basis for saying that that grounds jurisdiction? And one argument and the argument that we that we prefer in the paper at least in in certain contexts Is we make the argument that that amounts to submission That that if you're going to come to the conclusion that the clause because of the close relationship Binds the non-party Then it is inherent in the very nation notion of saying that the clause binds the non-party that they have submitted To the jurisdiction in the same way that a contracting party through the clause has submitted to the jurisdiction They clearly haven't subjectively as a matter of subjective intent Submitted to the jurisdiction but the consequence of saying the clause is binding on them Should do the analytical work of saying that the jurisdictional basis is plain vanilla submission The global transaction cases Are harder and it's much more difficult in the context of a global Transaction like that Bermuda shareholder agreement to try to say that that in any way amounts to submission Through having entered into the global Transaction so that one we struggle to think whether that could really be packaged in as a submission basis for jurisdiction That then takes us and I only I know I only have a couple minutes left But it takes us to the club resort's decision from the Supreme Court of Canada in in 2012 and the Supreme Court of Canada's Notion that we have these three categories for jurisdiction. We have presence. We have submission But we also have jurisdiction based on what we now call a presumptive connecting factor Service out cases we can found jurisdiction based on a presumptive connecting factor between the dispute and And the forum and the question is whether Even absent a conclusion that the clause Binds the non-party Even absent that conclusion. Can we somehow get off the ground the argument that a Jurisdiction clause either in a closely related situation or in a global Transaction situation Constitutes a new so hitherto unrecognized, but a new presumptive connecting factor that would ground jurisdiction The Supreme Court of Canada has welcomed the creation of new presumptive connecting factors lower courts since 2012 have been busy creating presumptive connecting factors And indeed even in club resorts itself the Supreme Court of Canada said that one of the presumptive connecting factors was a contract Related to a tort claim that was a sufficient connecting factor A contract related to a tort claim being made in the forum that seems Perhaps tenuous and it has in fact been criticized But to the extent we accept that these kinds of things can be created as new presumptive factors It's possible that we could also do that in this area here All right, i'll close simply by saying We've seen a lot of development in recent years in the canadian context about form selection clauses This is likely only to continue with the coming into force of the hag choice court convention recently These american doctrines the global transaction doctrine and the closely related doctrine add yet another factor to the mix And there are cogent reasons we argue why canadian courts should not only pay attention to but should adopt These doctrines as they're being fleshed out as long as they are appropriately modified for the canadian context These bases for jurisdiction Further the general rationale for forum selection clauses in the first place And serve to create efficiencies through the reduction of multiplicity of proceedings. Thank you Many thanks first of all to the organizers for inviting me to this conference. It's a true honor and pleasure to be here In fact to be again here after 20 years I was an exchange student from heidelberg at the academic year of 1994 1995 And I was of course thrilled at the time to be at a place like this at least Until the first night when I was arrested by the compass police of my college I had been visiting the brand new library of the college and I was deeply impressed what I saw there But after a while, I thought it would be a good idea to leave the library and I found myself all of a sudden trapped between the inner door and the outer door of the exit And I thought wow that should not happen to a brand new building in a brand new building that the doors don't work properly And I thought what would I do? It was a time where there was where not yet any mobile phones I wondered what it would be like to be there until the next morning But there was no need to worry about that because what I didn't know at the moment At that moment was that I had triggered the silent alarm Of the library and the police were already Chasing to the place because they thought they would or at the end of the day have they would Would have caught the bloody crook that had been stealing books in the time before but I assure you again it was not me and The police was great. They granted to me full access to justice In particular due process and so I could explain my story and we found out it was a book from the university of heidelberg with the magnetic stripe that triggered the alarm but I of course fear that I would be on one of these lists of strange people troublemakers Nevertheless, I got the invitation to this event Be that as it may mainly I'm very grateful to be here to Share views about choice of foreign agreements out of the Brussels one recast and under the hake convention As we all know choice of foreign agreements are of high relevance to the parties to regulate their business relations to fine tune their jurisdictional interests and as we know from statistical data provided by the european commission During the recast uh process Parties make extensively use of them at the same time parties face many legal difficulties one of uh one part of them we've just Uh heard about we will hear about other difficulties later on and legislators Have made attempts to improve the situation by uh enacting suggesting harmonized law For example, as we all know the hake, uh, con the hake conference by the hake convention of 2005 That will enter into force at the end of the month as of first October 2015 and also of course There is the brussels one recast of 2012 that has entered into force at the beginning of the year And we all remember that one of the main objectives of the Recast was to strengthen the effectiveness of choice of court agreements and the european commission it declared In its proposal for the recast that the solutions would reflect the solutions established in the 2005 hake convention On the choice of court agreements thereby facilitating a possible conclusion of this convention by the european union That has happened in the meantime Whether the solutions adopted do in fact reflect the solutions in the choice of court agreements Uh, uh convention. That's another point on the other hand the hake con the hake conference has declared Uh that as a global organization with many member states outside the european union Uh, the hake conference would favor a revision that aligns the community rules with the 2005 choice of court convention So there have been cross links between the two instruments already During their respective making and there are certain consequences from these cross links First of all, there is maybe an intensified general interest in comparison now the texts are finalized And also secondly There is maybe a sort of uh imperative for coherent interpretation of the regulation with the convention As far as the regulation does reflect and maybe adopt paths from the convention Because if and to the extent that is the case, uh, these paths should be interpreted coherently On the other hand, there is a chance to interpret now the convention By reflecting it in the regulation and of course, um, the eu and its member states Their state practice in Applying paths that are similar to the convention That is state practice of high relevance and of high impact for interpretation of the convention So there is also, um, um a connection from brussels back to hake On the other hand, of course, we are talking about uh independent instruments autonomous rule makers And uh, we will also certainly see different system rationalities Simply different solutions different options Against this background, I would like to compare important policy decisions that we can find in the two instruments And to these, uh belong Probably the following four Internationality of the case the requirements for the validity of the agreement The public policy control of the agreement and last not least lease pendants rules Given that I do not even have 25 minutes as I thought until this morning, but only 20 minutes Uh, I would like to jump directly to points three and four and uh leave points one and two Maybe to the discussion probably simply to the written version of My thoughts Let's go to a public policy control directly article six literar c provides Accord of a contracting state other than that of the chosen court shall suspend or dismiss proceedings To which an exclusive choice of court agreement applies Unless giving effect to the agreement would lead to a manifest injustice Or would be manifestly contrary to the public policy of the state of the court sees The policy decision underlying this provision is Obviously that the derogated court may check the agreement and invalidate it in order to prevent Violations of public policy For example to be very clear. We are talking about something like Expected violations of due process in the chosen forum. We are talking about a prognosis about what will happen in the chosen forum and If the expectation is that there will be a judgment rendered by the chosen court that violates the public policy And that thereby will not be recognized Then there is something that uh can be called a public policy violation of the Derogation and in that case that derogation may be invalidated There is not only the level of the procedural violations, but of course, there is also the level of Violations on the level of substantive law. There are there may be Expected violations of fundamental principles of substantive law in the legal order of the derogated court Sometimes this second level of substantive law Is framed under the term of a loss of juridical advantage But we have to note, of course That a mere loss of juridical advantage a mere difference between the applicable laws of the derogated forum and of the chosen forum Does not yet amount to a public policy violation Sometimes this idea comes up under the term of an in tandem argument that means that A choice of forum agreement and a choice of law agreement must not operate in tandem to the effect that Important public policies of the derogated forum Circumvented sometimes this public policy control is criticized for introducing uncertainty to the process of attributing jurisdiction true, but Um, let me draw your attention to the effect that many jurisdictions Know such a kind of public policy control Let me illustrate that with a few examples and allow me to start with my own jurisdiction, germany You may have heard about a recent decision by the federal court of justice the bundesgerichtshof In 2012 it was an ingmar type situation But as opposed to the ingmar case There was not only the choice of law agreement selecting the law of a third state But there was additionally an exclusive choice of forum agreement in that case in favor of the courts of virginia usa And you may be surprised Maybe not at all surprised that the court decided as an act clear That eu community law to be more precise the commercial sales agent directive and its implementations That it's a mandatory character Necessitates requires the court the german court to derogate this exclusive choice of forum agreement There are other examples older examples are not going into details for reasons of time We could refer to bremen to mitzubishi From mitzubishi. There is the intundum argument In the famous footnote 19 similar ideas other terms, but functionally probably comparable Australia we can find some examples and of course last not least also UK twice an ingmar situation the reasoning of these judgments Have been criticized and maybe they are not very Convincing but at the end of the day there is the idea present of whether In order to protect substantive policies of the forum A choice of forum clause should be derogated. I leave it with that My only point is to illustrate that many jurisdictions know some kind of public policy control But the brussels won this regulation and the brussels one regulation They apparently do not have a public policy control The judgment that comes closest to an answer whether there is such a public policy control or not Is the case of transporti castelletti You may remember that case. It was about carriers liability Plus an exclusive choice of court agreement in favor of a member state court and The ecj held and I quote that substantive rules Applicable in the chosen court must not affect the validity of the jurisdiction clause. This is usually read as the decision To exclude any kind of public policy control But this sentence can also be read as simply saying that a mere loss of a juridical advantage Must not affect the validity of the jurisdiction clause There's a very recent case that also touches upon the idea. It is a case that we will discuss Later in more detail. I will only focus on one particular point in of this judgment In the case of cdc where again the question arose whether The effective private enforcement As decided as a requirement For national law by the ecj in the cases of manfredi and courage would require to invalidate The respective choice of court agreements to facilitate private enforcement But the court again did not invalidate the respective choice of court agreements by deciding and I quote again Binding effects of jurisdiction agreements cannot be called into question by the requirement of effective enforcement Of the prohibition of cartel agreements But again, this sentence can also be read as simply saying The substantive policy the the policy of substantive law Is not sufficiently threatened not sufficiently Joppedized by the situation that was To be decided that uh an invalidation would be justified So the bottom line Maybe is the question would there be at all a justification a sufficient justification for excluding Right away and as a matter of principle a public policy control Well, we could all we could all we could argue as always with mutual trust and say A mere expectation of a future public policy violation In the proceedings of another member state court cannot suffice to invalidate a european jurisdiction agreement But as we also know from the From the case law of the ecj there are Implicit exceptions to the principle of mutual trust and to Strict obligations of the member states you may remember the case of An s versus secretary of state for home affairs. It is an entirely different area of law It's about the Dublin mechanism to retransfer asylum seekers A topic that is of particular relevance at the moment and as you may remember under this mechanism Member states are required to retransfer asylum seekers back to the country back to the member state Where the asylum seeker first touched european ground But the european court of justice held that if there is substantial ground to Suspect that there will be violations of human rights of due process in that country There is no There is no obligation to retransfer the asylum seeker Even though there is no express public policy clause in the dabbling mechanism You could also You could also argue that harmonized eu substantive law Is present to such a large extent that it's hardly possible to think about situations in which A violation of public policy control could occur Correct, but still there is autonomous law in the member states and Saying that would be arguing. I've been driving my car Without any accident for the last 30 years. It's time to remove the safety belt and the airbag I don't think that this is a convincing argument So my conclusion or my thesis at that point on that point is It is inevitable. It is not possible to exclude The public policy control It is always there. It is inherent. So we should make it express. We should We should we should lay it down expressly in the brussels one this regulation Lispendence article six Of the hay convention says A court of a contracting state other than that of a chosen court Shall suspend or dismiss proceedings to which an exclusive choice of court agreement applies Unless a list of exception Applies I'm not going into details. The policy decision underlying this provision is obviously A far-reaching independence of the non-chosen court. The non-chosen court has the competence For establishing the validity of the agreement on its own Of course according to the choice of law rule to the law of the chosen court, but independently From whatever the chosen court does There is no compulsory priority for the chosen court. The non-chosen court may Stay in favor of the chosen court, but it has not it does not have the obligation to It may also continue proceedings If it believes if it comes to the conclusion that there is an exception applicable so we Find or we can we can notice a tolerance for parallel proceedings in the hay convention and the coordination Of these parallel proceedings only takes place By the rules on recognition Well, Brussels won this we find in article 29 the old lispendence rule priority by first in time, but only Now without prejudice to article 31 2 and in article 31 2 There is the new modified lispendence mechanism that Intends to somehow Prioritize the chosen court, but How exactly that is a matter a matter of interpretation and the interpretation of these rules has turned out to be Very controversial I'm aware of the fact that there are quite a lot of people who have expressed views on that already others Will have made up their minds Let me just try to Explain what in my view could be a plausible interpretation First of all, I think we are still on common ground that article 31 2 applies only after the designated court has been seized as well So if we look at the time before that moment The non designated court has the competence the power to decide alone Whether there is exclusive jurisdiction from the Choice of court agreement A mere objection of the defendant only bars jurisdiction by appearance But does not trigger the modified lispendence rule There is no time limit in the new mechanism For the defendant to trigger the new mechanism Which leads to the danger of abuse the defendant can Apparently wait until a very late stage of proceedings in the non chosen court and all of a sudden say oh By the way, I'm now Seating the chosen court and then Thereby, I will trigger the new priority Mechanism that should be fixed in the next recast. I believe If we look, uh, if yeah after the recast is before the recast, uh, I think that's uh, that's no question If we if we look at the time After the designated court is seized and if we first look, um at the role of the non designated court The non designated court must stay proceedings In favor of the designated court if and now there will be a list of conditions The first two are probably still common ground. The third one is the most controversial one If the agreement is not invalid according to article 31 for if to put it differently The agreement does not violate rules for the protection of weaker parties consumers employees insured parties Second condition. I think we are still on common ground If the agreement is not invalid according to article 24 to put it differently If the agreement does not violate exclusive jurisdictions in article 24 This is something the ecj has already decided in the case of viva in 2014 Uh for the old brusselts one regulation And now the controversial point in the entire Controversy What else is necessary for the non designated court to be obliged to stay? Uh, there are different views. There is nothing really clear clear in the uh new provision I would believe that it is something like a prima facie Test for the existence of an agreement something like we know from arbitration But It is unclear whether this is in fact the standard of review And if it is the standard of review, it is unclear how to use it. So we Have the danger of inconsistent state practice and there will be references probably to the ecj and That seems to be enough to say Maybe it's not the best of all possible Solutions. Let's look at the designated court. The designated court Will establish its jurisdiction from the agreement The designated court does not have to wait until the first court has actually stayed its proceedings This is something we know from recital 22 sentence five. So there is certain ground on that point But if I understand the rule correctly, but please correct me if I'm wrong If there is no jurisdiction from the agreement for the chosen for the designated court What happens then my impression at the moment is The designated court is required to stay its proceedings and uh The priority of the court first Joe first seized comes back article 29 The designated court is not empowered to decide about its jurisdiction on other grounds if that is correct The priority may shift back and forth under this mechanism, which is kind of strange and Complicated. So if we boil down all that what we were talking about Uh on the level of policy It is clear that brussel's one base wants to prioritize one court And if a show a choice of court agreement is involved It uh wants to prioritize the chosen court, but There is residual competence for the non-chosen court to a certain unclear extent This is to say it again Very complex and we have to realize that parallel proceedings are tolerated to a certain extent Is there A better solution. Well, this is uh the point. Uh, I would like to submit to discussion uh, let us think for 10 seconds if I read correctly about a solution that I would call Hague elements plus gota Versicherung You remember the judgment of gota It creates a race judicata effects Uh for judgments by member states on jurisdiction Irrespective of whether the lex loci the lex fory process walits and I should say Create such effects or not. So it's a europeanized race judicata effect So judgments are binding for all other member states courts on jurisdiction If we put these two things together we could Think of the following We could simply Delete all priority rules. That is an element. We know from the Hague We would face parallel proceedings for sure, but Together with gota physician We would have the possibility To have early interim judgments on jurisdiction with binding effect We could think of additionally introducing an obligation To render an interim judgment on jurisdiction for each member state court seized with a matter and deciding on jurisdictions on the basis of brussels won this The first interim decision would be binding for all other courts As far as I can see and as far as I understand my own Suggestion correctly, but please correct me if I'm wrong No torpedoes anymore anywhere Clear and simple, but maybe I'm wrong. Please tell me One rule for all situations No special rule for chosen courts and other situations of lespendence and last not least A true reflection of the solutions in the Hague convention Thank you very much Now we moved to something slightly different, but a little allied So let me begin by Some personal remarks But let's say our personal remarks because Carmen and I having organized the previous conference of the journal in Madrid We want to begin by congratulating the president organizers who are doing quite well Despite the weather And we want to tell you that it is a pleasure for us to be here this time on the other side of the conference as a speaker So not organizers and that it is a pleasure for us and a privilege to share these thoughts on jurisdiction and competition in low claims And I try to stick to the time we have allotted and I begin just by Saying that we don't have this So in context of increasing cross-border litigation to cover to recover damages arising out of competition learning fringe dance despite the fact that member states in the EU Share unified rules for jurisdiction Establishing Establishing international jurisdiction Private enforcement of competition law has largely dependent of only international legal systems Recent legal developments Could have meant a change in this scenario But how about the birth as one regulation recast did not endorse any new rule or modified the existing rules that address these particular claims Neither a whole substantive harmonization has been proposed in the directive 20 to 14 104 on actions for damages for infringement of competition law Finally, the question of collective reverse has been simply addressed in recommendation, which is not binding from the commission on june 2013 Hence why may conclude that the european union has definitely Reinforced his choice Or in favor of the regulatory competition when it comes to private enforcement to private enforcement of competition It goes without saying that among the possible options open to the plaintiffs The choice may be influenced by national procedural laws as well as by the functioning of the national judicial systems But it is also true that this regulatory competition will be also dependent on the available Choices as regards jurisdiction and the coherence of the system It seems obvious that the enforcement of european union competition law Be it administrative or private enforcement has to be coherent as a whole In this regard while it is possible to find mechanisms and rules that allow for the coherence in the enforcement of competition law Between different public authorities One may wonder whether this is the case when it comes to private enforcement of competition law In order to address this point, we need to analyze which are the possible Courts that may desist and whether this choice brings a real possibility of regulatory competition in a coherent way A complete picture of the situation will also require season the impact of directive 2014 104 on this jurisdiction of a structure It is upon these elements that we shall consider whether the present system of private enforcement of competition law in the european union provides a sufficient predictability Certainly an access to justice that may foster its success It is our intention that while this may be correct in relation to follow one actions It is more it is more doubtful whether we may affirm so when it comes to a standalone actions If this is correct more emphasis should be put on development mechanisms that facilitate standalone claims It is also clear that fostering private enforcement of competition law Would also need for the development's own collective address But due to the uncertain state of the art in relation to this point, we shall just ignore this issue in the presentation We shall consider then first the functioning of two main grounds for jurisdiction under the Brussels 1 to the CUST Mainly the defendants domicile and then the place of the harmful event in relation to follow one actions The recent unsighted decision of the court of justice in case CDC will provide interesting elements for interpreting these rules Then we shall move to analyze those same grounds of jurisdiction in relation to standalone claims As you know, full on claims are those actions for damage where the plaintiffs rely on the previous existence of an administrative decision that establishes an infringement of competition law Let's consider first the application of article A1 to follow one actions Should there be a plurality of defendants this article allows to consolidate the claims That and so all the co-defendants At the courts of the member state Where one of the co-defendants is domicile as long as there's such a connection between the claims that it is Speeding to decide on those actions together in order to avoid irreconcilable judgments Article A1 has been a favorite path to this jurisdiction in claims for damages arising out of competition law infringements This usually usually it has been taken for granted that such a connection between the claims against several members of a court Is presenting for the world claims This point has been confirmed by the court of justice in the CDC judgment The court states that in order to have a cause to article A1 It is necessary that there's a risk that there be a divergence in the outcome of the dispute And that that this divergence arises in the context of the same situation of fact law The court assessed that Circumstance is satisfied in scenarios like the one in the cbc case because the commission had stated That the court amounted to a single and continuous infringement of article 101 of the treaty of functioning of the european union A more controversial issue refers to the anchor defendant That is the one which is who's chosen to fix the legislation The uk experience has provided some Elements examples of of a broad interpretation of the concept of anchor defendant Based on the what their concept of undertaking and the competition law terms This has it has led this has led to solutions Such as the one and those in the cbc case Where an english subsidiary was held as the anchor defendant even were it had not been the other c of the commission decision Because it was then to have implemented not knowingly the cartel It is contended that this understanding is hardly compatible right now with the interpretation of article 81 accorded to case cdc Since the court of justice That this article should be strictly constructed as a derogation From the principle established in article 4 It would seem thus That the court of justice identifies as possible defendants only those who have been the adversaries of the decision of the competition authority However, there's still a certain margin for member state courts interpretation Because the court the court's judgment and cdc does not demand that the defendant has directly participated in the infringement Therefore a parent company of a court a member that has not participated directly in the infringement But has been held responsible by the commission could serve as an anchor defendant At this point, I would like to consider the impact of article 11 of directive 2014 slash 104 On article 81 of the brushes one we passed This article 11 establishes the joint and several liability of undertakings that have infringed competition law With the effect that each of those undertakings is bound to compensate for the harm in full Otherwise the claimant has the right to require full Full compensation from any other of them until he has been fully compensated However, this provision only applies in relation to big enterprises Since small and medium enterprises are only liable to example choices It will be interesting to see whether claimants we intend to sue big companies Will still rely on the consolidation mechanism offered in article 81 of the brushes the cast And whether consequently the provision will be only left to cover multiple damages against small and medium enterprises Let's bring our attention to the place of the harmful event that has Recognizing article endorsing article 72 The court of justice has confirmed in case cbc that claims for damages are rising out of competition law infringements Are to be classified as non-contractual and therefore become under the scope of article 72 It has also confirmed that its settled case law on this article also applies to competition law claims Therefore in the case of an action for damages brought against defendants domiciled in various member states As a result of a single and continuous infringement of article 101 of the treaty of functioning as established by the european commission Each victim has a dual choice First she may sue before the court's the place given by ester the damage Which is identified by the court as the place in which the cartel was definitely concluded Or the place in which one agreement in particular was concluded Which is identifiable as dissolved hopefully then given price to the laws allegedly suffered The claimant is thus entitled to litigate in this forum for the whole damages suffer and against all the infringures This is a very interesting twist or turn in the cbc judgment Because the claimant may sue even those infringers who have not acted within the jurisdiction of that court Thus the court explicitly overrides its decision And it does so because the concrete circumstances of the case that is the existence of a decision of the commission that makes it foreseeable for the defendant The defendants that then might be sued in that place Being the idea of predictability as a justification for this interpretation and placing the advantages of having one solution that allows to sue all defendants And for the whole damage in one court what may consider nevertheless how often it will be possible to identify the place where the cartel agreement was concluded Secondly the victim may also see is the court where the harm was felt namely the place where the additional costs Resulted from the artificially high prices And the ensuing loss was felt the court of justice states that it should be located at the registered office of the defendant Again, the court of justice slightly modifies the traditional understanding of the case of result Because it gives the court sees jurisdiction against either one or several The participants in the court for the whole of the loss inflicted upon that undertaking One may concede that this solution satisfies the need for a close and clear connection of the case with the seized court And it also helps the sound administration of justice and efficacious conduct of proceedings Lastly this forum will be predictable for the defendant since he since he is clearly aware Of who the victims are and where they are located Along these lines the place of the registered office of the victims may well not be only what the assets are But also where the market has been affected This outline idea mainly That the connecting point reflects the place where the market has been affected Could be the basis to extend the interpretation given by the court in the cdc case in relation to Enterprises to the cases where the claimant is an individual In this case it would seem reasonable to adopt the domicile of the claimant as the place where the loss was felt Such an understanding would be predictable enough for the defendant in as much as this domicile is located in the market where the effects of the anti-competitive behavior were affected This leads us to the impact of directive 2014 slash one on four That this directive may have on article 72 on the interpretation of the court of justice of article 72 According to the directive any natural or debilical person that has experienced damages regardless whether She's a direct or an indirect protosser has to be able to claim damages This statement will probably change the court of justice a traditional understanding of direct victim in the sense that second or third Protosses may not be considered any longer indirect victims and then may help recourse to article 72 It is considered though that the terminology becomes tricky Even more when these claimants belong to a distribution chain and are located at several links of and several links of the chain This brings our reflections to the question of the pass-in-on defense And the ensuing potential multiple claims that may arise both direct and indirect protosses claim for damages on the basis of the same administrative decision This directive asks for a consolidation of the claims So that there is no overcharge of damages This will demand an increase in recourse to article 30 of the process one to cast And possibly a more flexible approach to this article so that the best place called here's the pace regardless whether it was the first court sees This attitude is already in practice when it comes to the allocation of cases between national Authorities competition authorities in the european competition network And the increasing importance of the principle of mutual trust between legal systems within the european union Such as that the time may be about also for a change at the private enforcement level So now I go for the standalone claims Privacy enforcement of competition law may take the form Of standalone actions This implies that the claims are presented while there is no previous administrative decision on the existence of a competition law infringement Despite the inherent public interest of competition These actions are indicated for private parties sake In these cases the courts will have to decide whether there has been a competition law infringement for restrictive practice or abuse of dominant position And if that is the case whether the claimant has suffered a prejudice for which he is entitled to be compensated In order to avoid inconsistencies in the application of the european union Competition law and to guarantee its coherence within the european union decentralized competition enforcement framework regulation 1 slash 2003 includes some rules in order to coordinate the intervention of civil courts and administrative authorities However, there is no rule for the national courts coordinated application of european union competition law Coordination between national courts and even the necessarily previous determination of their respective jurisdiction Since particularly delicate but there is no reference from an administrative decision Since the existence of the infringement its authors or its possible victims have not been authoritatively established Under these circumstances it makes sense to reflect on the particularities of a standalone actions regarding two issues The margins for establishing jurisdictions on the process one and the first place And secondly the incidents of the jurisdiction issues on the coherent application of the european union on decentralized competition law and system As to the margins for establishing jurisdiction under Brussels one Olena has already explained the risk Of irreconcilable judgments due to the existence of the same fact and law situation That cobbles as long as it is predictable for the accumulation of claims in one of the defendants domicile according to article 81 Once they follow all actions This is clearly derived from the resolution adopted by the administrative authority When this decision is nonexistent The compliance with the requirements will be analyzed by the national court on the basis of the data provided by the climates The information about the parties nature and extent of the anti-competitive Agreement may be limited since it is difficult for the claimant to obtain it on its own It will be not strange that the relevant and definitive data can only be obtained through litigation Therefore at the time of presenting the claim There may not be enough evidence as to who are the authors of the alleged infringement And if their actions amount to the same situation of fact and law Under these circumstances two options can be envisaged as to the determination of the jurisdiction the first one Would entail a strict interpretation of the requirements that will leave no room for Resorting to article 81 since the connection between the claims and the risk of Consulable judgments cannot be definitively established until the merits have been analyzed and the decision has been made The second would be a flexible interpretation of the requirements that would lead to consider enough Finding indicatory elements that support the existence of the same situation of fact and law Together with an up-degree of predictability for that jurisdiction for the defendants In this regard it is possible To note that the european court of justice has already established that the full analysis of the merits Is not required for the purpose of establishing jurisdictions on the brussels one And the existence of enough indicatory elements should be sufficient Under a flexible approach then it would be possible to restore to this jurisdiction an option In standalone claims This does not hide the fact that they uncourse the fact that code that will be chosen by the claimant may not be the best place to hear the claim as vertical seven Number two the place of origin which in cdc the court locates where the agreement or the castle event Was reached raised the evidence problem again The issue is whether the data that the claimants can provide would be enough to identify this place If any how possible the claim would cover all damages On the other hand the court placed the damage understood as the Pecuniary laws at each of the claimants registered office As long as the national court establishes the plaintiff's international condition as a victim of the alleged infringement This place can be easily identified It is interesting to note that in cdc the court extends this jurisdiction to the whole of the laws Experienced by the claimant victim without any further explanation Elena has already elaborated on the possible relation of this conclusion with an Interpretative trend based on the effect structure In principle, it sounds reasonable maybe to think that there cannot be relevant economic damages for the claimant in a place that is different to its registered office Obviously this jurisdiction adoption leads to a firm actuaries And moreover fragmentation of jurisdiction and the possibility of consolidating actions will be an issue Applying the same rule To stand-alone actions would mean that the national court of the claimant registered office would have to determine the existence of the alleged infringement Even when it may have an european dimension In other words when its effects exceed the national borders One may wonder first whether the national court can adopt this kind of decision and in the affirmative Whether its effects should be limited to the parties or be ultra periods In this regard The establishment of the infringement is a civil and commercial matter hence It falls on the the regular stop of brazos one and there is in principle no firm No formal reason to exclude the competence of the national court In addition considering the exhaustive character of the prohibitions under regulation one slash 2003 The ultra various effect has received academic support In this regard the cooperation that the national courts receive from the commission and from the national administrative authorities Provide certain guarantees for the uniform and coherent application of the european union competition law by these national courts Nevertheless the ultra various effect of the national court decision cannot be Warranted beyond national borders unless the decision is recognized through brazos one Since a number of national courts may be called to decide on a particular infringement The risk of irreconcilable judgments is at stake In this regard the search of a fully coherent application of the european union decentralized competition law enforcement system Can only resort to the consolidation of claims through the related actions rules of article 30 who's uses discretionary Moreover as the regulation stands consolidation of claims leads necessarily to the first says court Without considering whether the second may be a better place to decide on the infringement Similarly under article a2 it is the claimant Who chooses the consolidated in court without any possibility for considering a better option Among those where the defendants are the missile to conclude Establishing jurisdiction for the private enforcement of european union competition law on the basis of brazil's one system Does not seem to present special problems as compared to other fields of law In spite of the possible operation limits and therefore the material reduction of options available to the claimants Hence as long as the options available to the claimants are somehow limited It is possible to conclude that the regulatory competition Theoretically resulting from the decentralized enforcement system would not be as large as one could initially expect However, this does not mean that parallel connected precedents cannot be envisaged It is perfectly possible to picture claimants acting Against the same or similar defendants before different national courts It seems clear that as such the determination of jurisdiction is not enough to guarantee the effectiveness of the system Nor as a consequence the uniform and coherent application of the european union competition law If rules on coordination Maybe even Opening some floor for a foreign convenience option Are not sufficient or do not allow for the best possible solution Elena and I would like to thank you very much for your attention and your comments. Thank you