Brussels I bis and employers based outside the European Union

Categories: Employment Law
Typology: Case Law

The High Court of Justice of England and Wales delivered last week its decision in Petter v. EMC Europe Ltd and EMC Corporation (22nd May 2015, [2015] EWHC 1498 QB).

Petter is a former senior employee of the European subsidiary of a US company who issued proceedings in March 2015 in England and served them on both the European subsidiary and the US parent company, contending that the latter was his employer and party to a contract of employment within Article 20 of Brussels I bis (Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters). The contract of employment contained a jurisdiction and governing law clause in favour of The Commonwealth of Massachusetts (USA). The US parent company accordingly started proceedings on the other side of the Atlantic at the beginning of April. At the end of April, the former employee sought an interim anti-suit injunction in England on the basis of Brussels I bis and the decision of the Court of Appeal of England and Wales in Samengo-Turner & ors v J&H Marsh & McLennan (Services) Ltd & ors [2007] EWCA Civ 723, [2008] ICR 18.

The decision is interesting on two points. Firstly, the Court (Mr Justice Cooke) applies the new rules regarding jurisdiction over employers based outside the European Union and concludes that it has jurisdiction (on these rules, see P. Franzina, “L’universalisation partielle du régime européen de la compétence en matière civile et commerciale dans le règlement Bruxelles I bis: une mise en perspective”, in “Le nouveau règlement Bruxelles I bis », Bruylant, June 2014, p. 39). The jurisdiction clause in favour of the State of Massachusetts (USA) is deprived of any legal force. More precisely, the Court holds that the US parent company may be considered as an employer of Mr Petter within the meaning of Brussels I bis, although it would not be such as a matter of English law (para. 49). Consequently, the former employee is entitled to bring his claim against the US parent company in England under Article 21.1(b)(i) and Article 21.2 Brussels I bis and the former employer is only entitled to bring proceedings in courts of this country against Mr Petter under Article 22. By reason of the terms of Articles 23 and 25.4 the agreement between EMC Corporation and Mr Petter to the jurisdiction of the courts of Massachusetts is of no legal force, so far as the English courts are concerned. It has therefore to be ignored even though it is, as a matter of Massachusetts law, binding upon the parties to it (para. 50).

However, and secondly, the Court refuses to grant an anti-suit injunction (para. 71). Among the reasons, the fact that the grant of anti-suit injunctions is essentially inimical to the Regulation which certainly does not allow such in the context of jurisdictional disputes where the jurisdictions in question are the courts of Member States. Common Law jurisdiction may grant anti-suit injunctions outside the context of the Recast Regulation but, once matters are governed by the Regulation, even if it is open to the court, it would not seem appropriate to do so on the grounds of a jurisdiction granted solely by the Recast Regulation, as opposed to jurisdiction founded on an agreement between the parties” (para. 69). The Court also noted that the existence of proceedings in Massachusetts is not vexatious and oppressive and that the rulings of the Massachusetts court on its own jurisdiction are not in breach of customary international law. The judge considers that regard must be had to the parties' free choice of law in favour of Massachusetts law and to the requirements of comity in relation to the decision of the US court (para. 70).

(Altalex, 6 July 2015. Article by Emmanuel Guinchard)

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