Hardly any abuse limitation for anchoring suits through the Lugano Convention Article 6
News | 08.03.19
Article 6 no. 1 states that:
"A person domiciled in a State bound by this Convention may also be sued where he is one of a number of defendants, in the courts for the place where any one of them is domiciled provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings"
Article 6 is used to anchor suits in Norway, which would not otherwise be subject to Norwegian jurisdiction. This is done by suing a person domiciled in Norway, which may or may not otherwise be a natural subject for the suit, and asserting that the claims against the other foreign defendants should be tried in the same suit to avoid irreconcilable judgments. The Norwegian defendant is then a so-called anchor defendant. Article 6 may be used to anchor suits in Norway that (one could argue) should not be under Norwegian jurisdiction. Sometimes the anchor defendant does not have any natural connection to the suit, but is sued merely because it is a Norwegian defendant in order to get Norwegian jurisdiction.
In the case before the Court of Appeal, certain Norwegian and foreign companies in the Posten/Bring group (mail services) had sued companies in the Volvo group for alleged losses incurred when purchasing trucks from Volvo after certain companies in the Volvo group had been fined for participating in a price-fixing cartel. Posten/Bring also sued a Norwegian company in the Volvo group, which had not been fined for participating in the price-fixing cartel.
In the decision of December 2018, Borgarting Court of Appeal said Norwegian courts do have jurisdiction pursuant to Article 6 no. 1 even if the anchor defendant is sued merely to obtain Norwegian jurisdiction. The question was solely whether the claims were so closely connected that there was a risk of irreconcilable judgments.
The Court of Appeal also referred to Cartel Damage Claims v. Akzo Nobel (C-352/13), where the Court stated that jurisdiction pursuant to Article 6 no. 1 might be excluded where there is "firm evidence that, at the time that proceedings were instituted, the parties concerned had colluded to artificially fulfil, or prolong the fulfilment of, that provision's applicability". Such a situation was not before the Court of Appeal.
This implies that there is hardly any abuse limitation for anchoring suits in Norway, only if the claimant conspire with the anchor defendant.
Link to the decision (Norwegian only).
This article is also published on Lexology.