## Facts

- An Austrian seller (Gasser) supplied children’s clothing to an Italian distributor (MISAT) under a contract containing a jurisdiction clause selecting the courts of Feldkirch, Austria.
- A payment dispute arose, with Gasser alleging MISAT was in arrears.
- Before Gasser sued in Austria, MISAT sued first in Italy seeking a declaration that the contract was terminated and that it owed nothing.
- Gasser then brought a payment action in Austria relying on the jurisdiction clause.
- MISAT invoked the Brussels Convention lis pendens rule, arguing the Austrian court had to defer to the Italian proceedings because Italy was first seised.
- The Austrian first-instance court stayed the Austrian action; the appellate court referred questions on the interaction between lis pendens and jurisdiction agreements to the Court of Justice.

## Issues

1. Whether, under the Brussels Convention, a court second seised must stay its proceedings under the lis pendens rule even when it is the court chosen by a valid jurisdiction clause.
2. Whether the lis pendens obligation permits an exception where proceedings in the first-seised state are generally excessively slow.
3. Whether a national court may seek a preliminary ruling on these questions before examining the merits, relying on party submissions, if it provides sufficient context and deems the ruling necessary.

## Decision

- The Court held the reference admissible because the referring court considered an interpretive ruling necessary and provided sufficient factual and legal context.
- The Court held that the court second seised must stay proceedings until the court first seised declares it lacks jurisdiction, even if the second-seised court is designated by a jurisdiction agreement.
- The Court held there is no derogation from the lis pendens rule based on the general length of proceedings in the first-seised state.

## Legal Principles

- The Brussels Convention lis pendens rule gives procedural priority to the court first seised to determine its jurisdiction, and the court second seised must stay its case of its own motion pending that determination.
- A jurisdiction agreement does not displace the lis pendens mechanism; the first-seised court must assess the applicability and validity of the jurisdiction clause within its own jurisdictional analysis.
- The lis pendens rule is mandatory and cannot be set aside based on generalized claims that the first-seised forum’s courts are slow, because such an exception would reduce certainty and conflict with mutual trust among courts.

## Conclusion

The Court required strict application of lis pendens: even when parties have chosen a forum by agreement, the chosen court must wait if it is second seised, and it may not refuse a stay due to general delay in the first-seised state’s courts.


Erich Gasser GmbH v. MISAT Srl, Case C-116/02 (C.J.E.U. 2003)