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ended that the court had jurisdiction since Austria was the place of performance of the contract as evidenced by the Brussels Convention’s Article 5 (1). Further, in all the invoices raised by the Gasser to MISAT, Austrian court was mentioned as a ‘choice of court’ clause and MISAT had never raised any objection over it. Within the meaning of Articles 17 of the Brussels Convention and because of the trade usage and practice existed in the trade between Italy and Austria, the two parties had consented to accept the jurisdiction of the Austrian courts.
Whether the court second seised may evaluate the authority of the court of the first seised if the second court has the sole deciding authority under Art 17 or must the second court prevent its proceedings as per Art 21 albeit the accord granting jurisdiction. (Sheppard 2007: 211).
Though, there is no involvement of English parties in Gasser case, UK government still presented its written remarks on the question raised. It was submitted that in cases of unique jurisdiction, a derogation from Art 21 can be made by the court second seised and can declare its verdict without awaiting for the court first seised to decide that it had no legal standi on the issue. They counted on ECJ verdict in “Overseas Union Insurance “, which dealt with Article Sixteen as opposed to Article Seventeen, which was in question this case. It was further contended that the court named in the agreement authorising jurisdiction will, in normal parlance, be in a better status to rule as to the impact of that agreement by applying an essential law of that Member Nation. (Sheppard 2007: 211).
The European Court held that the objective of Art 21 is to bar corresponding actions occurring in courts of various Contracting States as to stop implementation of judgments. Hence, so as to give effect to this, Art 21 shall have to be given a wide elucidation. It was viewed that under the provision of Art 21, until the legal status of the court
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