Brussels Regime Research Articles

The 1996 Hague convention on international child protection in the UK post-Brexit: focus on jurisdiction and recognition and enforcement

ABSTRACT This article discusses the strength and weakness of the 1996 Hague Convention vis-à-vis the Brussels IIbis Regulation and its successor the Brussels IIter Regulation. It engages with relevant UK case-law to assess the application of the Convention in the UK, with the aim of encouraging uniformity in the application of the Convention across Contracting States. The focus of the article is on the topics of jurisdiction and recognition and enforcement. The article concludes that, overall, the Convention mechanism is fully capable of securing adequate cross-border child protection post-Brexit. Nevertheless, it might be too early to declare conclusively whether the disapplication of the Brussels regime in the area of parental responsibility and its replacement with the 1996 Hague Child Protection Convention in the UK has strengthened or weakened the protection of international families with links to the European Union post-Brexit, in particular with respect to recognition and enforcement. Regarding jurisdiction, the article expresses anticipation that the emerging UK case-law on Chapter II of the Convention will provide valuable guidance for the courts of other Contracting States, including UK’s former EU partners, with the view of harmonizing the application of the Convention across Contracting States. To facilitate exchange of good practice in a systematic manner, the article proposes that the Hague Conference establishes a database of case-law on the 1996 Convention.

The Arbitration Exclusion under the Brussels Regime: A Story of Colliding and Sinking Ships

‘O Captain! My Captain! our fearful trip is done’. In Walt Whitman’s poem ‘O Captain! My Captain!’, the ship arrived at the harbour with cheering crowds awaiting its arrival. In contrast, the ships on which the arbitration exclusion sailed under the Brussels Regime were assigned a different destiny. They either ran into collisions or sank to the bottom of the ocean. In this regard, the Court of Justice of the European Union (CJEU) was requested to rule on the scope of the arbitration exclusion. In particular, the absence of a definition of the term ‘arbitration’ gave rise to uncertainty and controversy which the CJEU was asked to resolve. The approach that the CJEU pursued to resolve this issue changed significantly throughout the history of the arbitration exclusion, reflecting the CJEU’s growing mistrust towards arbitration. This has left a mark on the arbitration landscape within the European Union (EU) that has earned criticism from the international arbitration community. In the wake of the CJEU’s most recent ruling concerning the arbitration exclusion, and the following reaction of the English High Court, this article evaluates whether the arbitration exclusion has followed the ships on which it sailed to the bottom of the ocean, or whether it was handed a lifebelt for its continued existence. Arbitration, Litigation, Award, Arbitration Exclusion, European Union, Brussels I Recast, European Court of Justice, Parallel Proceedings, West Tankers, London Steamship Owners

Faktori uspona italijanske radikalne desnice sa osvrtom na njene fašističke elemente

The topic of the paper is the Italian radical right, which won a landslide victory in last year's elections and formed the most right-wing government since World War Two. The aim of the paper is to determine the reasons for strengthening the Italian right's fascist wing through the analysis of its history and the circumstances of its activity and to show whether the fears of the European Union that fascism returned to one of its founding countries are justified. The main difference between the modern radical right and fascism is its acceptance of democracy and political pluralism. It is fundamentally different from classic fascist parties, it is characterized by populism and not elitism, nativism instead of racism, it is not autocratic but democratic. Up until the nineties, the term right was equated with fascism in Italian political discourse, so a true right did not even exist as a regular actor in political life. The conclusion of the paper is that Italy never truly broke with fascism, the process of defascification was not carried out in its entirety. The victory of the radical right, in which the youngest party, Fratelli d'Italia, which is the offspring of Mussolini's party, dominates is the result of the EU membership itself and the waves of crises it faces, the specificities of the Italian political system, the peculiarities of Italian fascism, a general weakening of liberal order with the transformation of the left and the right. The right did not win a two-thirds majority in the Parliament which is a prerequisite for the government of the right to alter the constitution without a referendum, and so the legal realization of radical policies is under control. There is minimal risk of the deterioration of relations with the European Union because, regardless of the current more moderate approach, Giorgia Meloni advocated the abandoning of the Eurozone and conceptually different structure of The Brussels regime. 6

Forum Non Conveniens doctrine – post Brexit applicability in transnational litigation

The article follows the origin of the English forum non conveniens doctrine development in stay proceedings, its alterations, and applicable tests leading to CJEU’s decision in Owusu. Owusu ultimately forbade English courts to stay its proceedings and allow a “more convenient” forum to decide on the dispute merits in cases where the jurisdiction was conferred by the Brussels regime – not only concerning other EU courts but worldwide. With the UK’s withdrawal from the EU, a question appears whether English courts might again exercise this power. If affirmatory, the paper proceeds to assess various applicable, or presumably fitting, instruments, both for allocation of jurisdiction, and recognition and enforcement of judgments – Lugano Convention, Hague Convention 2005, and Hague Convention 2019. The paper also assesses how these instruments might interact with the use of forum non conveniens doctrine.

Discretional elements in the Brussels Ia Regulation

Following continental European traditions, the Brussels Ia Regulation forms a rigid regime of mandatory heads of jurisdiction, generally not providing jurisdictional discretion. Nonetheless, to some limited extent, the Brussels regime includes discretional elements, in particular when it comes to lis pendens (see Articles 30, 33 and 34 of Brussels Ia). Reconsidering the strong scepticism towards forum non conveniens stipulated by the CJEU in its Owusu case, the fundamental question arises whether a substantial form of discretion concerning jurisdictional competence might be (in)compatible with the core principles of the Brussels regime.

ALIGNING THE BRUSSELS REGIME WITH THE REPRESENTATIVE ACTIONS DIRECTIVE

AbstractEuropean private international law has long been recognised as improperly set up to deal with cross-border collective redress. In light of this shortcoming, it seems unfortunate that the private international law implications of the Representative Actions Directive (Directive (EU) No 2020/1828) have not yet been addressed coherently by the European legislator. This article examines to what extent the policy of promoting collective redress can be supported, even if only partially, through a reinterpretation of the jurisdictional rules of the Brussels Ia Regulation. Furthermore, it discusses which legislative measures need to be adopted to better accommodate collective redress mechanisms within the Brussels regime.

Anti-Suit Injunctions in European Transnational Litigation: Past, Present and Post-Brexit Future of an Unusual Remedy

Anti-suit injunctions are the frontline in the clash of civil and common law. Of course, the imbalance of powers between the systems’ courts is critical. However, both approaches have their advantages. Whilst civil law approach establishes harmony between Member States’ courts and provides for a high degree of legal certainty and predictability, the common law approach gives greater flexibility to judges in order to do justice in the individual case, which at times is necessary to prevent abusive litigation tactics. Whilst the Court of Justice of the European Union (CJEU) rightfully held that the Brussels regime does not allow for anti-suit injunctions in non-obligation-based cases, the remedy should not have been banned in obligation-based cases. Civil law dominated Europe has unfortunately missed the opportunity to learn from the common law approach in a rather arrogant manner. Now however, it is time to look forward. It is crucial to realize that even greater conflicts may arise from 1 January 2021, but that the future also provides a unique opportunity to resolve the issue once and for all. In the eye of the inevitable reemergence of the anti-suit injunction it is high time to address the issue. Otherwise, parties involved in cross-border litigation in Europe may be in danger of having to litigate with minimum legal certainty or even becoming playing balls amongst jurisdictions. Such a situation would scare off parties and decrease Europe’s attractiveness as a legal venue. Therefore, it is not only in the parties’, but also in both the UK’s and EU-27s interest to resolve the issue of anti-suit injunctions in transnational litigation in Europe.

Jurisdiction concerning annex actions in the context of the insolvency and Brussels Ibis regulations

AbstractThe legislation of the European Union has addressed the private international law aspects of civil and commercial matters and those of insolvency cases separately. While the Brussels Ibis Regulation (and its predecessors) focuses on “classic” civil of commercial cases, insolvency proceedings are subject to the (recast) Insolvency Regulation. However, the close interference between the two related areas of law—commercial and insolvency—results in a category of cases that are commercial and contentious in nature, and so they would tend to gravitate towards the Brussels regime, but yet they are so closely connected to the insolvency proceedings that justifies a special approach. This article focuses on the question of international jurisdiction regarding these “annex actions” in the context of the EU law. It will attempt to explore the historical roots of the current provisions and the evolution of both the European legislation and the relevant case law. The examination of this progression provides a better understanding of the current legislation and answers some questions apparently left open in the recast Insolvency Regulation.

The Brussels I Regulation and Third Countries

This essay is a brief critique of the regime established by the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters and its successor, the European Union’s Brussels I Regulation. The essay focuses only on those of the regime’s aspects that affect defendants domiciled out-side the EU (third-country defendants) and certain proceedings in courts outside the EU. From the EU perspective, the Brussels regime is an unqualified success. Regrettably, one cannot say the same about some of the regime’s external aspects. In particular, the regime discriminates against third-country defendants by: (1) subjecting them to exorbitant jurisdictional bases available under the national laws of many EU states (although it prohibits the use of those same bases against defendants domiciled in the EU); and (2) mandating recognition of the resulting judgments throughout the EU. Other, more subtle, discriminatory features include the way the regime treats the claims of exclusive jurisdiction of third countries, as compared to EU states, and agreements conferring exclusive jurisdiction on the courts of third countries rather than to courts of EU states. In 2018, a year of coarsened international discourse in which discriminating against “the other” has become a political banner for some forces and threatened or real trade wars and retaliations initiated primarily by one particular political leader are becoming commonplace, these discriminatory features of the Brussels are small potatoes. Nevertheless, if private international law is, as Werner Goldschmidt taught us, the derecho de la tolerancia, we must continue to speak up against intolerances, be they big or small, new or old.

Reverse use of Article 7(5) Brussels Regime in IP litigation: can you sue from the establishment?

Reverse use of Article 7(5) Brussels Regime in IP litigation: can you sue from the establishment?

Wintersteiger v Coty Prestige: The place of infringement under the forum delicti rule

Torsten Bjørn Larsen LL.M PhD is Associate Professor at Aalborg University, Denmark. In substantive European trade mark law you can basically go two ways. Either you can apply for and possibly be granted a national trade mark or you can apply for and possibly be granted an EUTM. If you choose the former, that is, a national trade mark and your right has allegedly been infringed, jurisdiction is subject to the rules in the Brussels Regime. If you choose the latter, that is, an EUTM and your right has allegedly been infringed, jurisdiction is subject to the rules in the EUTMR. The more frequently used jurisdiction rule in European trade mark litigation is the forum delicti rule. The rule basically allows the plaintiff to sue the defendant at the place of infringement. The question is, however, how the place of infringement is interpreted in national trade mark and in EUTM litigation. It is the purpose of this article to address that question by comparing the place of infringement in national trademark litigation (the authority is the Wintersteiger case) with the place of infringement in EUTM litigation (the authority is the Coty Prestige case).

Choice of court agreements under Brussels Ia and under the Hague convention: coherences and clashes

Choice of court agreements are widely used. Harmonized private international laws have entered into force recently, namely the Hague Convention of 30 June 2005 on Choice of Court Agreements on 1 October 2015 and the Brussels Ia Regulation on 10 January 2015. Both instruments are formally independent but in the legislative process the drafters of the Convention took notice of the Brussels I Regulation, and the EU legislator took notice of the Convention while working on the Recast of the Brussels I Regulation in order to “strengthen” choice of forum agreements and to bring about “coherence” of the Brussels regime with the Hague Convention. Against this background, the two instruments now in place are compared in respect to their most important policy decisions: the definition of the internationality of the case as a prerequisite of the applicability of the respective instrument, the understanding of the choice-of-law rule on the nullity of the agreement, the scope and mode of a public policy control of the agreement and, most extensively, the respective mechanisms for coordinating parallel proceedings, in particular the new mechanism under the Brussels Ia Regulation granting priority for the designated court. This new mechanism turns out to be too complex, leaving important points open. Therefore, de lege ferenda an alternative mechanism is suggested along the lines of the Hague Convention by making use of the recent judgment of the Court of Justice of the European Union (ECJ) in Gothaer Versicherung. This alternative would not only be much easier and thus more predictable, it would also be able to coordinate each and every parallel proceedings, not only those involving a choice of court agreement.

The Party Autonomy Paradigm: European and Global Developments on Choice of Forum

One of the pillars of international commercial litigation is party autonomy as it has developed over the past fifty years. In Europe, the Brussels regime established considerable freedom for parties to select the court that would have jurisdiction. The enforceability of choice of court agreements has gained ground in many countries worldwide, and the freedom to select the competent forum is exercised widely in commercial practice. Early in 2015, the new Brussels Ibis Regulation became applicable, altering the rules on choice of court. These amendments, particularly the exception to the lis pendens rule, aim at increasing the efficiency of choice of court agreements and at preventing torpedo litigation tactics. This year also marks the entry into force of the Hague Choice of Court Convention that had been adopted ten years earlier. The present paper explores the concept and development of the party autonomy paradigm from the perspective of different disciplines, and discusses the empirical evidence available on the use of party autonomy in commercial practice. It also examines the main changes brought about by the Brussels I recast and the entry into force of the Hague Choice of Court Convention, and analyses these against the background of the party autonomy paradigm, as well as their contribution to effective litigation.

What Does Brexit Mean for the Brussels Regime?

What Does Brexit Mean for the Brussels Regime?

CIVILINĖS IR KOMERCINĖS BYLOS RIBOS REGLAMENTE DĖL JURISDIKCIJOS IR TEISMO SPRENDIMŲ CIVILINĖSE IR KOMERCINĖSE BYLOSE PRIPAŽINIMO IR VYKDYMO

Straipsnyje analizuojamas Briuselio konvencijos ir ją pakeitusių Briuselis I ir Briuselis Ibis reglamentų įtvirtintos konkrečios teisminių ginčų kategorijos, išskiriamos iš civilinės ir komercinės bylos srities. Nagrinėjami ginčai, susiję su bankrotu, socialiniu draudimu ir arbitražu.

A Step Forward in the Harmonization of European Jurisdiction: Regulation Brussels I Recast

Abstract The Brussels regime is a legislative framework that regulates questions of transnational litigation in the European Union. Having been initially shaped upon negotiation of the 1968 Brussels Convention, it has been subsequently superseded and expanded in scope by the Brussels I Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, alongside other instruments addressing specific areas of law. Recently, the Brussels regime has been amended by the Recast Brussels I Regulation, which entered into force on January 15, 2015, bringing about significant and long-awaited change. Addressing the experience of application of its predecessors, the changes in the Recast Regulation have been introduced to the treatment of choice-of-court agreements and their relationship with the lis pendens doctrine, abolition of exequatur, reaffirmation and clarification of the arbitration exclusion, as well as further minor amendments.

CONFLICTS OF JURISDICTION AND PARTY AUTONOMY IN EUROPE

Party autonomy provides certainty and predictability to the parties, reduces litigation costs, promotes the prompt assertion of jurisdiction by a court, and simplifies case management between different countries. However, the existence of an exclusive jurisdiction clause cannot completely extinguish conflicts of jurisdiction. Common law countries traditionally adopt discretionary instruments, such as forum non conveniens and anti-suit injunctions to tackle conflicts of jurisdiction. Both instruments work together in common law countries to create a balance between international comity and effective case management. The application of these two instruments, however, has been questioned in the European Union (EU). This article examines conflicts of jurisdiction in the Brussels I Regulation and particularly focuses on the effect of the European approach in cases involving a jurisdiction clause. It is submitted that the current Brussels regime in dealing with conflicts of jurisdiction and choice of court agreements demonstrates three weaknesses: procedural certainty takes priority over party autonomy; mutual trust and comity override justice in individual cases; and an artificial fragmentation of the internal and international market. It is expected that situations will be improved after the proposed amendment in the Recast Proposal and the Presidency Amendment is adopted, which provides harmonised choice of law rules to decide on the material validity of a jurisdiction clause and the negative kompetenz-kompetenz rule to decide on the preliminary issue of an exclusive choice of court agreement. Although the proposals do not accept the common law instruments to tackle conflicts of jurisdiction in cases with exclusive jurisdiction clauses, it may not be necessary to insist that forum non conveniens and anti-suit injunctions be adopted where a proper approach has been established to ensure the effectiveness of an exclusive jurisdiction clause and to provide for the priority of the courts in deciding on its validity. However, the European lawmaker should pay specific attention to the improvement of the functioning of the Regulation in the international context to tackle conflicts of jurisdiction in choice of court agreements involving a third country.

Brief of Amici Curiae English Law Practitioners Martyn Day, Richard Hermer QC, Richard Meeran, and Blinne Ní Ghrálaigh in Support of Petitioners

Amici wish to ensure that the Court is informed that, contrary to the suggestion of the Brief Amici Curiae submitted by the Governments of the United Kingdom and the Netherlands, 2 under English common law and the Brussels Regime, there is nothing extraordinary or extravagant in the extraterritorial scope of the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350. Nor does extraterritorial application violate any norms of international law. In fact, English courts may assume jurisdiction over international law violations committed overseas in circumstances that mirror the assumption of jurisdiction of U.S. courts in ATS cases.

Defining Exorbitant Jurisdiction

Despite decades of vigorous debate, the term “exorbitant jurisdiction” remains an ill-defined concept within international civil procedure and private international law. The discord has created a quagmire in which any serious discussion of exorbitant jurisdiction must begin with a lengthy discussion of what the concept actually entails. The result of this quagmire is that there are as many definitions of exorbitant jurisdiction as there are articles or treaties that address it.This Article is an attempt to distill those definitions into five manageable schemata – essentially definitional genres. The schemata can then serve as shorthand for future scholars and drafters so that they can convey particular views of exorbitant jurisdiction without delving too deeply into the discord surrounding the concept of exorbitant jurisdiction.Author's note, December 2012: Certain aspects of this Article have changed. Most notably, the European Community has made changes to the Brussels Regime, and the U.S. Supreme Court has questioned the continuing application of certain forms of jurisdiction. These changes aside, the majority of the research in this Article remains relevant and timely.

Finding A Proper Nexus For Constructing Specific (Special) Jurisdiction Regarding Commercial Contract and Tort Cases: A Comparative Study of the us and European Approaches

More than a decade's efforts of the Hague Conference on Private International Law have resulted in the Convention on Choice of Court Agreements concluded on 30 June 2005. However, compared with the original proposal, this Convention is rather a limited achievement indeed. The failure of the Hague negotiations for a broad jurisdiction and judgments convention provides an opportunity to reflect on which approach is better. This article tries to exhaustively examine this issue. To this end, Section B will critically review specific jurisdiction for commercial contract and tort cases in the US. Section C will critically explore special jurisdiction for commercial contract and tort cases in the European states, ie under the Brussels regime. While Sections B and C intend to tell the reader what the situation is respectively in the two systems, emphasis will be put on the different nexuses utilised for constructing specific (special) jurisdiction. Section D will compare the US approach and the European approach and examine the consequent differences in practice. Section E will analyse the advantages and disadvantages of the two different approaches. Based on the analysis of the previous sections, Section F will draw a conclusion on which approach is better.