Brussels Regulation Research Articles

EVALUATING THE ADMINISTRATION OF JUSTICE AND ABUSE OF PROCESS: A CRITICAL ANALYSIS OF THE MARIANA JURISDICTION CHALLENGE [2022] AND THE EUROPEAN SYSTEM OF LAW FOR CIVIL AND COMMERCIAL MATTERS FOR A THIRD STATE

Background: This research critically analyses the jurisdictional challenges and their implications for the proper administration of justice in the case of Mariana vs. BHP Group [2022] EWCA Civ 951. The legal route taken by the High Court of Appeal is examined, considering both the proceedings in the UK (pre-Brexit) and a third state (Brazil). This text examines the impact of the European legal framework on EU member states and evaluates the approach of UK towards Article 34 of the Brussels Regulation. The analysis examines whether pursuing damages based in civil or commercial liability suffered by victims domiciled in a Third State through European jurisdiction is appropriate. Methods: The study employs a case law analysis, supported by doctrinal legal research methodology, to systematically examine the balance of the principle of forum non conveniens and the consistent application of the Brussels Regulation in the Mariana Case. This is a critical review of the UK High Court's decision to overturn Judge Turner's ruling. The review emphasizes the adherence to historical national precedents, European Union Law, and the European Court of Justice's previous rulings against the United Kingdom's strike-out legal technique. The article explores the complexities of administering justice, focusing on the interplay between case management discretion, the principle of proportionality, and the court's responsibility to ensure a fair trial. It analyses the impact of factors such as the court's structure, case complexity, and the time required for resolution within this framework, while also considering the court's duty to administer justice effectively. . Results and Conclusions: The study's findings enhance comprehension of jurisdiction challenges in transnational litigations within the European Legal System and their implications for the proper administration of justice. The article recommends a balanced approach that upholds the substantial rights of claimants while aligning national practices with EU civil liability standards, promoting judicial harmony in transnational civil and commercial liability cases in the European Union.

The UPC long-arm jurisdiction and the UK

... The Unified Patent Court (UPC) is a court system running in parallel to national courts of European Union (EU) Member State countries that are not participating in the UPC, as well as national courts that are outside the EU but members of the European Patent Convention (EPC). This raises matters of the UPC’s jurisdictional relationship with those national courts. The relationship between the UPC and the non-UPC EU Member State courts is governed by the Brussels Regulation.1 Once the UPC has begun, the Brussels Regulation will allow, in certain circumstances, the continuance of cross-border actions between the national courts of non-UPC Member States and the UPC itself. But what about non-EU countries and, specifically, the UK, which is no longer a party to the EU or Brussels Regulation? This article examines how cross-border matters between the UK and the UPC will be regulated and how the UK courts might respond.

Municipio de Mariana v BHP Group: Implications of the UK High Court’s Decision

The High Court of England and Wales in its November 2020 judgment in Municipio de Mariana v BHP Group1 (BHP) declined jurisdiction to hear the case initiated by victims of the Fundão Dam collapse in Brazil on the grounds of abuse of process. The decision raises serious questions about the Court’s willingness to vindicate the fair trial rights of victims of human rights abuses linked to multinational enterprises (MNEs). In this judgment, Turner J also made obiter comments on the possibility of staying the case on application of Article 34 of the Recast Brussels Regulation (Recast Regulation),2 the doctrine of forum non conveniens (FNC), and/or the Court’s case management discretion.

Supreme Site Services v. Shape (C.J.E.U.)

On September 3, 2020, following a request from the Dutch Supreme Court, the First Chamber of the Court of Justice of the European Union (CJEU) rendered its preliminary ruling in Supreme Site Services and Others v. SHAPE on the interpretation of Articles 1(1) and 24(5) of the European Union (EU) Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation).

Why Allianz v West Tankers Still Applies under the Brussels Regulation (Recast): An Analysis of Nori Holdings v Bank Otkritie [2018] EWHC 1343 (Comm)

Abstract This article analyses Nori Holdings v Bank Otkritie [2018] EWHC 1343 (Comm)—the only English decision hitherto holding that EU law’s prohibition on anti-suit injunctions based on arbitration agreements established in Allianz v West Tankers survives the Brussels Regulation (recast). We argue that Males J’s rejection of AG Wathelet’s hypothesis in his Gazprom opinion to the effect that the Regulation (recast) has overruled West Tankers is largely persuasive. At the same time, we also identify two problematic aspects of the judgment. Namely, we contend that the High Court was arguably wrong (i) to interpret AG Wathelet as envisaging that a case would ‘move in and out’ of the Regulation and (ii) to interpret Gazprom as holding that Member State courts are permitted to enforce all arbitral ‘anti-suit’ awards, including those enjoining a party from litigating in another EU Member State.

THE NEW INTERNATIONAL CHAMBERS OF THE PARIS COURTS – INNOVATIVE WAY FOR RESOLUTION OF COMMERCIAL DISPUTES

The process of the withdrawal of the United Kingdom form the European Union has been discussed predominantly from a political and economic point of view. However, the consequences are more far reaching. With UK on the doorstep of leaving the EU, the decisions issued by its courts would no longer benefit from the recognition system provided in the Brussels Regulation (Council Regulation (EC) No. 44/2001). As a result of this, it is expected that London would no longer be seen as a primary destination for international litigants.In the awaiting of the aftermath from the Brexit, other cities and member state countries of the EU have started the race to position themselves as the next “legal hub”. While other member states have been vocal about offering alternative courts, so far France has been at the forefront of this initiative. On 7 February 2018 two Protocols were signed by the French Minister of Justice, the President of the Paris Bar, and the presidents of the Paris Court of Appeal and the Paris Commercial Court. With the first protocol amendments were made to the already existing International Chamber within the Paris Commercial Court, whereas with the second Protocol a new International Chamber has been created within the Paris Court of Appeal. The aim of the creation of these international divisions within the Paris Court is to create an attractive jurisdictional system which would meet the expectations of the economic actors. Paris has already been one of the most important world centers for dispute resolution as a result of the work of the International Chamber of Commerce and its work in the field of Alternative Dispute Resolution (ADR). However, with this initiative Paris has an opportunity to further strengthen its attractiveness.The adoption of the two Protocols is a groundbreaking move which sets forth innovative rules of procedure, incorporating unique approaches in the field of international commercial litigation. The rules of procedure contain an increased level of flexibility offering the parties a chance for litigations with great similarity to arbitration. Most notably, the new Protocols provide for the usage of English as language in the course of the proceedings, adapted procedure which should better suit the need of the parties, focus on oral testimonies instead of written witness and expert submissions, possibility for cross – examination, broader scope of tools for securing evidence, such as requests for document production, as well as the possibility of non- French lawyers to appear in front of the Courts. The aim of this article is to provide an insight in the new structure of the International Chambers by reviewing the novelties in the two new Protocols. The article reflects on similar initiatives which have been undertaken in other EU members and countries worldwide, and whether this can be the starting point for more drastic and revolutionary reforms in the traditional litigation system.

JURISDICTION IN TORT CLAIMS FOR NON-PHYSICAL HARM UNDER BRUSSELS 2012, ARTICLE 7(2)

AbstractArticle 7(2) of the Brussels Regulation, 2012 confers jurisdiction, in matters relating to tort, on the courts of the Member State in which the harmful event occurred. In Bier v Mines de Potasse d'Alsace, the CJEU held that this covers both the place where the event which caused the damage takes place and the place where the damage itself takes place. In later cases, however, it held that does not cover the place where the victim claims to have suffered financial damage following upon initial damage arising and suffered by the victim in another Member State. A problem arises if there is no physical harm but only financial loss or some other kind of non-physical harm. It is not always clear in such a situation where the damage occurs. This article considers this problem with special reference to pure financial loss but also two other torts in which no physical harm occurs: defamation and intellectual-property infringement.

Jurisdiction and Arbitration Agreements and Their Enforcement

Jurisdiction and Arbitration Agreements and Their Enforcement , (3rd edition), by David Joseph QC, Sweet & Maxwell, 2015. With the first edition of Jurisdiction and Arbitration Agreements and Their Enforcement , David Joseph QC identified and addressed a notable gap in the literature available to practitioners. While there were (and are) of course well-established and excellent texts on, eg the Brussels Regulation and agreeing and enforcing arbitration agreements, David Joseph brought together a broad number of topics that have traditionally been dealt with separately in the literature, but which in fact fit together well and benefit from being addressed in that way. Reading the Third Edition some 10 years down the line, one is struck by how well this approach has stood the test of time, and how useful this book has become to the practitioner in providing a comprehensive but accessible text on the complex scheme of laws and treaties that govern the establishment and enforcement of jurisdiction and arbitration agreements. Despite the scope of the work, and the inevitable detail that certain of the topics demand, the clarity of the structure of this Third Edition and of David Joseph’s writing is such that this text can be used by those who know little of the law of transnational dispute resolution as well as those with a deep or academic interest in the area. For the arbitration practitioner, the changes of most immediate interest in the Third Edition will concern the wealth of recent jurisprudence that has been introduced and is the subject of David Joseph’s commentary and occasional criticism, in particular on court proceedings competing with the jurisdiction of an arbitral tribunal. However, all but those with the most confined of practices will benefit from the exposition in the Third Edition of the important changes introduced by the Brussels I Regulation Recast and also of the Hague Convention on Exclusive Choice of Court Agreements that entered … [↵][1]*QC, Essex Court Chambers. swordsworth{at}essexcourt.net [1]: #xref-corresp-1-1

The ‘wills and succession’ exclusion from the recast Brussels Regulation

The ‘wills and succession’ exclusion from the recast Brussels Regulation

DOES THE JUDGMENT OF THE CJEU IN GAZPROM BRING ABOUT CLARITY ON THE GRANT OF ANTI-SUIT INJUNCTIONS UNDER THE BRUSSELS I REGULATION?

On 13 May 2015 the CJEU delivered the much anticipated judgment in Gazprom OAO v Republic of Lithuania. The CJEU had before it issues relating to the grant of anti-suit injunctions by member state courts/arbitral tribunals to enforce arbitration agreements, and also, most importantly if the Brussels I Regulation would apply to the case at hand. The case gains in significance, as the Advocate General (AG) had in December 2014, while giving his opinion on the matter had proceeded to apply a ‘future law’ on a matter pending before the courts, strongly recommended that the CJEU reconsider its judgment handed down in Allianz v West Tankers(The Front Comor). Earlier, in the West Tankers case the CJEU ruled that it was incompatible with the Brussels Regulation for the court of a EU Member State to grant an injunction restraining a party from commencing or continuing court proceedings brought in breach of an arbitration agreement. In reaching this decision, the CJEU held that if proceedings were to come within the scope of the Brussels I Regulation, then a preliminary issue concerning the validity of an arbitration agreement also came within the scope of the Regulation.

ANTI-SUIT INJUNCTIONS IN ARBITRAL AWARDS: ENFORCEMENT IN EUROPE

THE status of anti-suit injunctions in Europe has long given rise to controversy. The decision of the Court of Justice of the European Union in Case C-536/13, Gazprom OAO [2015] All E.R. (EC) 711 sheds a new light on the relationship between anti-suit injunctions and the European jurisdiction regime embodied in the Brussels Regulation (Regulation No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters). In this much anticipated judgment, the Court of Justice confirmed that, by virtue of the arbitration exclusion in Article 1(2)(d) of the Brussels Regulation, Member State courts are not precluded from enforcing anti-suit injunctions issued by arbitration tribunals and aimed at restraining the proceedings before Member State courts. Although the decision was given before the Recast Brussels Regulation came into force (Regulation No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, effective from 10 January 2015), it can be assumed that the same conclusion would have been reached under the new law.

ANTISUIT INJUNCTIONS IN SUPPORT OF ARBITRATION:WEST TANKERSSTILL AFLOAT

AbstractIn its eagerly awaited judgment inGazprom, the CJEU declined to follow the Opinion of Advocate General Wathelet thatWest Tankersis no longer good law. TheWest Tankerscase decided that the courts of one Member State are precluded from granting antisuit injunctions directed at proceedings in the courts of another Member State, even if the proceedings in which the injunction is granted fall outside the scope of the Brussels Regulation by reason of the fact that they are concerned with arbitration. TheGazpromcase confirms thatWest Tankersis still good law.

Article 13 of the Cape Town Convention and Article 31 of Regulation No. 44/2001—An EU Law Perspective

This article considers Article 13 of the Convention on International Interests in Mobile Equipment (‘Convention’) and the Protocol thereto on Matters Specific to Aircraft Equipment (‘Aircraft Protocol’) in the context of Article 31 of EU Regulation 44/2001 (the ‘Brussels Regulation’) 1 from an EU law perspective. In particular, the focus of this article is on the effect of EU accession to the Convention and the EU law interpretation of Article 31 of the Brussels Regulation (which allows provisional, including protective, measures granted by a Member State to be enforced by any other Member State) in the context of seeking to enforce a remedy under Article 13 of the Convention in the EU. This article is divided into the following parts: (i) an analysis of Articles 13 and 43 of the Convention;(ii) accession of the EU to the Convention and the Brussels Regulation; (iii) Article 31 of the Brussels Regulation and key aspects of its interpretation by the European Court of Justice (‘Court of Justice’); (iv) the ...

The Internal Market and Private International Law Regimes: A Comment on Case C-533/08 TNT Express Nederland BV v AXA Versicherung AG, Judgment of the Court (Grand Chamber) of 4 May 2010

In case C-533/08 TNT Express, the Court of Justice interpreted Article 71 of Regulation 44/2001 (the Brussels Regulation) which provides that the Regulation ‘shall not affect any conventions to which the Member States are parties and which in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments’. The Court held that the provision must be interpreted as including the implied condition that the specialised conventions referred to can only apply to the extent to which they do not undermine the ‘underlying principles’ of the Brussels Regulation, including the principles of mutual trust and free movement of judgments. The Court also found that it had no jurisdiction to interpret the specialised convention at issue in this case. The judgment is important for the development of private international law in the EU and for the EU as a locus for the development of private international law, regionally and globally. The Court has effectively decided that certain principles which underlie the policy field are constitutional in nature and non-derogable even where the legislature has chosen to limit the scope of harmonisation and thus the degree of uniformity in the Union system and to leave space to an international regime. Thus certain choices in the creation of the area of freedom, security and justice are removed from the political agenda. This paper offers a critique of the Court’s approach on a number of points, the aim being to try to tease out the implications of the ruling and to offer a different perspective.

In pursuit of substantial justice: navigating between flexibility and certainty in international commercial law

The competing approaches of legal certainty and legal flexibility have since formed a significant debate in international commercial law. This article, in the main, argues from a common law perspective using thematic analyses in the following respects: the quest for justice, the possibility of developing a common legal culture in light of some commercial uncertainties and the real status of legal certainty in the European Union with respect to the Brussels Regulation. It concludes that there is a need to develop a framework which guarantees substantial regularity without compromising the need to ensure that substantial justice always prevails.

El Fuero Especial en Materia de Obligaciones Contractuales en el Reglamento Bruselas I: El Status Quaestionis Interpretativo

This paper analyses the special forum established by the Brussels I Regulation regarding contractual obligations: Article 5.1. After presenting the special forums comprised in Article 5, the problems related to its proper scope are examined, i.e. the ‘contractual matter’ concept, as well as the problems related to the criteria which determines jurisdiction, i.e. ‘place of performance of the obligation’. Except for some timely reflection, the immediate purpose of this paper is to present the interpretative status quaestionis of this legal provision. The mediate purpose, however, is different: to try to explain a paradox. Commentaries published after Article 5.1 was passed have been very negative and almost all of them have called for a reform. However, this is a provision which has not been modified in the recent revision of Brussels Regulation. And, what is more surprising, despite this doctrinal clamour, not even a single European institution has suggested its modification. This paper looks for some explanations for this paradox.

Interim Measures of Protection, Injunctions and the Role of English Courts in International Arbitration

This paper examines the role of English Courts in international arbitration where the seat of the arbitration is in England. It focuses substantially but not exclusively on the power of the courts to grant injunctions in arbitration cases. It seeks to answer the questions: whether there exist a jurisdictional conflict between the power of the English Courts in granting injunctions against oppressive foreign proceedings brought in breach of arbitration agreement and the European Court of Justice decision in The Front Comor? Whether the alleged difficulties from the Front Comor case still exist in the wake of the recent decisions of the English Courts and in light of the Recast Brussels Regulation?

Analysing the application of Brussels I in regulating e-commerce jurisdiction in the European Union – Success, deficiencies and proposed changes

This article analyses the regulatory framework of e-commerce jurisdiction in the European Union (EU). Firstly, it discusses and analyses the current regime under the Brussels Regulation, highlighting its success in consumer protection and the deficiencies for e-commerce jurisdiction, which need to be addressed. Secondly, the article compares the EU regime with that of the United States (US). It is argued that the US courts follow uncertain and distinct approaches compared to the clear rules of the Brussels Regulation. Their present approach of minimum contacts analysis as followed in the Yahoo! case poses problems for a transnational EU litigant in similar cases. Thirdly, the article examines the recent proposals adopted by the European Commission to remedy the deficiencies in the Regulation. The most important change proposed is the inclusion of third-state defendants within its ambit. It is argued that the changes to be adopted by the European Parliament are insufficient, and the author therefore provides recommendations. Lastly, the article highlights the inability of the proposed changes to address the deficiencies identified by the discussion.

Don't Touch that Dial! You Don't Know What You are Doing - Contractions in the Birth of a New World Order

Practical Procedural Focus: First world parent corporations create thinly capitalized third world subsidiary corporations and outsource to sub-contractors in order to externalize costs of doing business (pollution, accidents, defective products) onto third world populations. When and how may first world courts attribute liability to main-offices for the extraterritorial torts of their subsidiaries? Substantive Law Exposed: Laws in the EU and Member States which are similar to the U.S. Alien Tort Statute (e.g., Brussels Regulation I) and the U.S. Torture Victims Protection Act (e.g. Convention Against Torture). Synopsis: Universal civil jurisdiction is lawful under international law because States may do all things within their powers which are not prohibited by their treaty obligations or customary law to which they have not persistently objected ab initio. International law (CAT) and EU law (Brussels Regulation) as well as contemporary Romanist law (Actio Popularis, action civile, Adhasionsverfahren) permit civil claims for violations of various jus cogens rules. Describes the rise of private enforcement of individual human rights under international law. International human rights, initially purely hortatory norms, which were applicable - if at all - only to states have since become binding rules of international law which often entail private law claims, whether through direct effect or indirect horizontal (third party) effect (Drittwirkung). Contextualizes human rights rise as a needed reaction to the abuse of human rights as cause and pretext for war under the pre-war system of only mediate enforcement by states (usually through diplomatic protection and self help remedies). Describes currently valid rules of national, E.U., and public international law (C.A.T.) which entail, or can entail, private law enforcement of human rights. Reiterates the black letter U.S. common law of procedural defenses to extraterritorial jurisdiction and the rules U.S. common law rules of piercing the corporate veil.

Recognition of a 'WCAM' Settlement in Germany

The settlements under the Dutch WCAM procedure, in particular in the Shell and Converium cases, pose new issues with regard to recognition and enforcement in the European Union. The paper comes to the conclusion that such decisions are to be recognized in the EU as judgments according to the Brussels Regulation. In particular, from the viewpoint of the German legal system, they do not – notwithstanding the particulars of a specific case – violate the German order public; therefore they are in principle to be recognized by German courts.