Derecho Internacional Público – dipublico.org Cátedra I de Derecho Internacional Público de la Facultad de Derecho y Ciencias Políticas de la Universidad Católica de La Plata – Argentina
Last week, Belgium initiated proceedings in the ICJ against Swizterland in a dispute raising issues of private international law and of the relationship between public international law and private international law. The dispute concerns:
“the interpretation and application of the Lugano Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters . . ., and the application of the rules of general international law that govern the exercise of State authority, in particular in the judicial domain, [and relating to] the decision by Swiss courts not to recognize a decision by Belgian courts and not to stay proceedings later initiated in Switzerland on the subject of the same dispute”. [See Press Release here]
The dispute arises out of the parallel proceedings pursued in Belgium and Switzerland by the main shareholders of the former Belgian airline – Sabena (which is now in bankruptcy). Those shareholders included the Belgian State (as well as companies owned by Belgium) and the Swiss airline formerly known as Swissair. After proceedings were brought in the Belgian courts by the Belgian shareholders against the Swiss shareholders, the latter in turn brought proceedings in the Swiss Courts. Belgium asserts that
“the Swiss courts, including in particular the Federal Supreme Court, have however refused to recognize the future Belgian decisions on the civil liability of the Swiss shareholders or to stay their proceedings pending the outcome of the Belgian proceedings. According to Belgium, these refusals violate various provisions of the Lugano Convention and ‘the rules of general international law that govern the exercise of State authority, in particular in the judicial domain’.” [See Press Release here]
It is rare for the court to have to deal with a case that raises issues of private international law but this has happened before – in the case concerning the Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v. Sweden) (1958). What appears to be particularly interesting about the present case is that it raises issues about the impact of public international law on private international law. This is because Belgium argues that Swiss Courts are under an obligation to stay proceedings brought in that country not only as a result of the Lugano Convention but also because this result is dictated by the rules of general international law relating to jurisdiction. According to Belgium, the failure by Switzerland to stay the proceedings is a breach of ”the rule of general international law that all State authority, especially in the judicial domain, must be exercised reasonably.”
Belgium has requested that the case be heard by a Chamber of the Court rather than by the full Court. This case is the third to be initated in the ICJ in 2009. Interestingly, the first was also brought by Belgium (against Senegal) [see EJIL:Talk! commentary on that case here, here and here]. The second case brought by Honduras against Brazil has not been entered on the Court’s general list of cases (see EJIL:Talk! commentary here)
