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Brussels I and Third States: Future Imperfect?

Published online by Cambridge University Press:  27 October 2017

Richard Fentiman
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Abstract

In December 2010 the European Commission published its long-awaited proposals for the reform of the Brussels I Regulation on civil jurisdiction and the enforcement of judgments. These concern matters of considerable practical importance. But they also expose fundamental questions about the Regulation’s proper scope, and its role in complex commercial disputes, which will persist long after the terms of the amended Regulation are settled.

Type
Research Article
Information
Cambridge Yearbook of European Legal Studies , Volume 13 , 2011 , pp. 65 - 85
Copyright
Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2011

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References

1 Proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the enforcement of judgments in civil and commercial matters (COM (2010) 748/3) (14 December 2010). On 31 March 2011 the UK Government formally confirmed its intention to opt in to any amended Regulation. The preliminary position of the UK Government is set out in Revision of the Brussels I Regulation—How should the UK approach the negotiations? Consultation Paper CP 18/10 (2011).

2 Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2001] OJ L12.

3 Those where the courts of a Member State have exclusive jurisdiction over the subject matter under Art 22 (as in cases concerning immovable property), or where the parties have submitted to such a court’s exclusive jurisdiction under Art 23.

4 Arts 22, 23, 27 and 28.

5 Art 1(2)(d).

6 COM (2009) 175, accompanying the Report of the Commission, COM (2009) 174.

7 Hess, B, Pfeiffer, T, and Schlosser, P, Study on the Application of Regulation Brussels I in the Member States, General Report, Study JLS/C4/2005 (2007), reprinted as The Brussels I Regulation 44/2001: Application and Enforcement (Munich, Beck, 2008)Google Scholar.

8 A Nuyts, Study on Residual Jurisdiction, General Report, Study JLS/C4/2005 (2007).

9 European Parliament Resolution of 7 September 2010 on the implementation and review of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (2009/2140(IND). The Resolution adopts a position in many respects opposed to that of the Commission Proposal.

10 See further, J Weber, ‘Universal Jurisdiction and Third States in the Reform of the Brussels I Regulation’, Rabels Zeitschrift für Ausländisches und Internationales Privatrecht (forthcoming), Max Planck Private Law Research Paper No 17 (2011), ssrn.com/abstract=1804103; A Dickinson, ‘Brussels I Review—The Wider Picture’, Conflict of Laws .Net (9 June 2009).

11 Commercial Court Report 2004–2005 (2006) (first figure confirmed by the Commercial Report 2005–2006).

12 For example, Hartley, T, ‘The European Union and the Systematic Dismantling of the Common Law of Conflict of Laws’ (2005) 54 ICLQ 813 CrossRefGoogle Scholar.

13 See generally, Fentiman, R, ‘Choice of Law in Europe: Uniformity and Integration’ (2008) 82 Tulane Law Review 2021 Google Scholar.

14 See further, Fentiman, R, International Commercial Litigation (Oxford, Oxford University Press, 2010) [11.76]–[11.127].Google Scholar

15 Ibid, 11.42–11.44.

16 See further, Report of the Financial Markets Law Committee, Legal assessment of problems associated with the Brussels 1 Regulation and suggested solutions (2008); Green Paper on the Brussels I Regulation, Report with Evidence, House of Lords European Union Committee, HL Paper 148 (2009).

17 Case C-281/02 [2005] ECR I-1383.

18 At para 34.

19 At para 143.

20 As in cases involving immovable property: Art 22.

21 Art 23.

22 Arts 27 and 28.

23 Case C-281/02 [2005] ECR I-1383.

24 At para 34.

25 Fentiman, above n 14, 11.89.

26 Over contracts broken, or torts committed, in a Member State.

27 Answering the objection raised by A Dickinson, ‘Brussels I Review—The Wider Picture’, Conflict of Laws .Net (9 June 2009).

28 As famously revealed in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460.

29 Kennett, W, ‘Forum non conveniens in Europe’ (1995) 54 CLJ 552 CrossRefGoogle Scholar.

30 P Schlosser, Report on the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters [1979] OJ C59/71, at 76.

31 Green Paper, above n 6, s 2.

32 See further, Fentiman, above n 14, 9.33–9.34.

33 By amending Art 23.

34 The existing Art 5 is amended by deleting the reference to persons domiciled in a Member State.

35 By a new Art 25.

36 By a new Art 26.

37 CPR Practice Direction 6B.

38 PD 6B, 3.1(6).

39 In Art 6.

40 Green Paper, above n 6, s 2.

41 Case C-412/98 Group Josi Reinsurance Company SA v Universal General Insurance Company [2000] ECR I-5925.

42 Fentiman, above n 14, [8.56]–[8.76].

43 By a new Art 34.

44 Art 28 of the Regulation.

45 Case 144/86 Gubisch Maschinenfabrik KG v Giulio Palumbo [1987] ECR 4861; Case C-406/92 The Tatry [1994] ECR I-5439.

46 Ibid, [11.103] ff.

47 Convention on Choice of Court Agreements, Final Act of the Twentieth Session of the Hague Conference on Private International Law (concluded 30 June 2005, signed on behalf of the Community, 1 April 2009), not yet in force.

48 Convention, Art 26(6).

49 For an account of the debate, and its uncertainty, see Fentiman, above n 14, [11.76] ff.

50 The literature is extensive. See further, Fentiman, above n 14, [11.76] ff, and material there cited.

51 Case 281/02 [2005] ECR I-1383.

52 See Fentiman, above n 14, [11.81]–[11.134].

53 See Fentiman, R, ‘Ousting Jurisdiction and the European Conventions’ in Dashwood, A and Ward, A, (eds) Cambridge Yearbook of European Legal Studies 2000 (Oxford, Hart Publishing, 2002) 107, and sources there collectedGoogle Scholar.

54 Ibid, 116–21.

55 A question raised but not answered, before the decision in Owusu, in Ace Insurance SA v Zurich Insurance Co [2001] 1 Lloyd’s Rep 618 (CA); see further, Green Paper on the Brussels I Regulation, Report with Evidence, House of Lords European Union Committee, HL Paper 148 (2009), 19 (evidence of Lord Bach).

56 But see The Xin Yang [1996] 2 Lloyd’s Rep 217, 221–22; Fentiman, n 53 above, 107, 129.

57 See Fentiman, above n 14, [11.30]–[11.43].

58 Ibid, [12.14]-[12.47].

59 Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 (HL).

60 C-281/02, [2005] ECR 1-1383.

61 Art 1(2)(d).

62 Fentiman, R, ‘Civil Jurisdiction and Third States: Owusu and After’ (2005) 42 CML Rev 241 Google Scholar; Fentiman, R, ‘Parallel Proceedings and Jurisdiction Agreements in Europe’ in de Vareilles-Sommières, P (ed) Forum Shopping in the European Judicial Area (Oxford, Hart Publishing, 2007) 27 Google Scholar.

63 As in cases following the decision in Case C-116/02 Erich Gasser GmbH v MISAT Srl [2003] ECR I-14693.