The meaning of a “court” and “proceedings” under article 27 of the Lugano Convention
Article 27 of the Lugano Convention provides that “Where proceedings involving the same cause of action and between the same parties are brought in the courts of different States bound by this Convention, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established” (the same provision is also contained in Article 27 of Regulation 44/2001). The issue in this case was whether Switzerland had been first seised after “conciliatory proceedings” had been started there. Such proceedings are a mandatory first step in the resolution of civil and commercial disputes within the court system. These proceedings can be contrasted with mediation which may take place instead of conciliation or during court proceedings (the parties are responsible for the organisation and conduct of the mediation and the mediation proceedings are confidential and kept separate from the conciliation authority and the court). By contrast, the conciliation authority is a state authority which, although separate from the courts, is part of the judicial system.
There is no definition of “court” or “proceedings” in the Convention. However, Richards J held that the fundamental purpose of the provision is to avoid parties being subject to parallel proceedings and to avoid conflicting judgments and “In circumstances where conciliation proceedings are, or may arguably be, mandatory it is unrealistic not to regard them as part of the proceedings which will or may lead to an enforceable judgment”. As a result, Switzerland had been first seised when a written request for conciliation had been lodged.