The Italian Torpedo (sometimes referred to as the Belgian TorpedoX., "Has the Belgian torpedo sunk?", Managing IP 30 June 2000.A. NUYTS and J.-S. BERGE, International Litigation in Intellectual Property and Information Technology, Kluwer Law International, 2008, 23.) is a term used in private international law to describe the act of bringing a case before a court in a state which suffers from major delays in judicial proceedings, such as Italy or Belgium, as to delay the judicial resolution of the dispute or the proceedings.J. WOOD and N. ALLAN, "Sinking the Italian torpedo: the recast Brussels Regulation", International Law Office 10 February 2012-5. The term was coined by Mario Franzosi in a 1997 article titled "Worldwide Patent Litigation and the Italian Torpedo", published in the European Intellectual Property Review.
The lis pendens-rule in article 29 of the Brussels I-bis Regulation (no. 1215/2012) provides that when proceedings involving the same cause of action and between the same parties are brought in the courts of different member states, all courts, other than the one first seized, must stay the proceedings until the first court seized has ruled upon its own jurisdiction.G. BISELLO, C. COGNETTI and F. LO GERFO, "Deactivating the Italian Torpedo", 5.
The European Court of Justice has left little possibility to counter an Italian Torpedo as it has ruled that the principle of mutual trust between the member states is of utmost importance and cannot be overridden in order to counter a torpedo.ECJ 3 April 2014, no. C-438/12, Weber v. Weber.ECJ 9 December 2003, no. C-116/02, Gasser v. MISAT.G. CUONZO, "The “Italian torpedo” never ending saga", Kluwer Patent Blog 2 September 2013.
However, using an Italian Torpedo is excluded for matters in which a court has exclusive jurisdiction as provided in article 24 Brussels-Ibis, such as proceedings which have as their object rights in rem in immovable property, the validity of entries in public registers etc.C. HEATH, Patent Enforcement Worldwide: Writings in Honour of Dieter Stauder, Bloomsbury Publishing, 2015, 64.
This issue was largely addressed in 2012, when article 31(2) Brussels I-bis was added to prevent the use of this tactic in the case where an exclusive jurisdiction agreement exists (such as a forum selection clause). However, exit of the UK from the European Union (and the applicable Brussels I-bis regulation) has caused a return of this tactic for agreements governed by English law.
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