Recast Brussels Research Articles

Forum Can Non Save Us Now

AbstractTactical litigation is a reality of the adversarial litigation framework that is currently in place. However, there is a difference between the tactical litigation of choosing a forum which may have more favorable law or be more convenient and choosing a forum with the intent to drive the opposing party to failure. The latter has been the issue with some of the tactical litigation that has occurred under the European Union’s framework of lis pendens. While the Recast Brussels I Regulation has alleviated some of those issues, it has not addressed all of them. While some scholars have argued that these issues of lis pendens may be answered by introducing the common law doctrine of forum non conveniens to these proceedings, that is not the case. This Article explores the pitfalls of lis pendens and forum non conveniens and ultimately finds that forum non conveniens is unable to solve the issues lis pendens creates in tactical litigation. Furthermore, the Article finds that forum non conveniens, inherently and acting as it should, has its own problems which echo lis pendens’ own issues in the European Union. Furthermore, forum non conveniens is simply incompatible with the policies the European Union implemented with lis pendens. Ultimately, forum non conveniens is unable to answer the problems lis pendens has created and solutions must be found from within the European Union’s own civil system.

Legal Regulations of Enforcement Procedure in Selected Foreign Jurisdictions

This article provides a brief comparative analysis of the peculiarities of the enforcement procedures in selected foreign countries and jurisdictions with various legal systems, including France, the United Kingdom, Belarus, Kazakhstan, the Baltic countries, as well as research into the organizational structure of their enforcement agencies. The article also provides an analysis of the diverse procedures applied in EU countries for enforcement of decisions of courts and other authorities in civil and commercial cases, including the European Enforcement Order, European Order for Payment, European Small Claims Procedure, as well as the procedure under the Recast Brussels I Regulation. The author’s objective is to consider the procedures of enforcement of Ukrainian court decisions in these countries, as well as to raise the issue of the possible application of these procedures in the relevant legislation of Ukraine and to provide material for further research and analysis of these options.

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).

Recasting West Tankers in the deep water: how Gazprom and recast Brussels I reconcile Brussels I with international arbitration

The central argument which is advanced by this article is that, whilst there is no outright obligation in Brussels I which prevents parallel proceedings between a court action and arbitration between the same parties and concerning a similar cause of action, the revisions in the recast Brussels I, along with the Gazprom interpretation of key non-revised parts of Brussels I, do certainly provide improved support for international commercial arbitration. These do so by giving more scope to national courts to restrict Parallel Proceedings; through anti-suit injunctions issued by an arbitral tribunal; through finding parties taking parallel court action to be in breach of the arbitration agreement; and by giving primacy to the arbitral award where it is irreconcilable with a parallel court judgment. The authors particularly demonstrate that this is made possible because of a changed (diminished) role which is given to the principle of effectiveness of EU law (effet utile) post Gazprom and Brussels I.

Unilateral Option Arbitration Clauses in the EU: A Comparative Assessment of the Operation of Unilateral Option Arbitration Clauses in the European Context

This article analyses the operation of unilateral option arbitration clauses (UAC) in the European context. The approach to UACs varies between the Member States of the European Union (EU). This has led to significant uncertainty. This uncertainty is attributable partly to the recent amendments in the recast Brussels I Regulation (hereinafter ‘Recast Regulation’) which came into force on 10 January 2015. Under the Recast Regulation, the substantive validity of jurisdiction clauses is governed by the law of the chosen forum. After an introduction (section 1) and a discussion of the typical wording and use of UACs (section 2), section 3 sets out the framework applicable to the assessment of jurisdiction clauses in the EU. Section 4 submits that the framework relevant to the assessment of the law applicable to UACs is provided by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 and discusses the operation of this Convention in the context of UACs. Section 5 provides a comparative assessment of the approach to the validity of UACs in the United Kingdom, Germany and France.

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

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

Business and Human Rights Litigation in Europe and Canada: The Promises of Forum of Necessity Jurisdiction

In the international debate over the human rights impact of transnational corporations' activities, access to judicial remedies for the human rights consequences of corporate misbehaviour has acquired a rather prominent place. For various reasons, victims of human rights abuses involving corporations may not have access to the fora offered by corporations' home and host states. Therefore, attention can be turned to bystander states offering an exceptional “forum of necessity” to avert a denial of justice. Such a forum of necessity is not, however, without problems. While, on the one hand, it may provide access to justice for victims of human rights abuses, it also creates the risk of forum shopping and potentially increases uncertainty for corporate defendants. Adopting forum of necessity thus requires the striking of a delicate balance between the interests of plaintiffs, defendants and the states asserting necessity jurisdiction. The debate on forum of necessity takes place in different fora. The doctrine is found in several European jurisdictions, but its contents and the degree to which it is developed vary signifi cantly. Thus, whether it can be expected to play a noticeable role in business and human rights cases is uncertain. As there are few relevant cases in Europe and the doctrine is generally in its infancy, the article compares the European experience with the experience of Canada, where forum of necessity has played a more prominent role, also in (business and) human rights cases. The European Union for its part has recently adopted a new regulation on jurisdiction in civil and commercial matters known as the recast Brussels I Regulation; the Commission's initial proposal for this new regulation contained a forum of necessity clause. This proposal was however signifi cantly amended, not specifi cally because of forum of necessity, but because EU Member States likely rejected the Commission's extension of the Regulation's scope to cover all civil cases in the EU, even those against defendants domiciled in third states. Consequently, the initiative to pursue forum of necessity as a helpful tool in business and human rights cases may fall to the Council of Europe. A lively debate is currently going on regarding the remedies that CoE Member States should provide to implement the UN Guiding Principles, and proposals are currently on the table to encourage CoE Member States to adopt certain grounds for jurisdiction, including forum of necessity, in their civil procedure law.

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.

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.

Annex proceeding and the continued interplay with the Brussels Ia Regulation

This article deals with the interrelation between recast Brussels I Regulation and European Insolvency Regulation in respect of proceedings featuring connection with insolvency. It is essential to accommodate these proceedings within the scope of one or another regulation since it determines applicable jurisdictional rules and different possibilities for refusing the recognition or enforcement of a judgment. The article examines which type of actions could qualify as “deriving directly from the insolvency proceedings and which are closely linked to them” (annex proceedings) and therefore fall within European Insolvency Regulation. The possibility to invoke this regulation against third state defendants and exclusivity of jurisdiction in annex proceedings are also discussed.

Application of Revised Rules on Jurisdiction under Brussels I Regulation to patent lawsuits

The future European jurisdiction for patent infringement lawsuits based on European patents—initially optionally—and based on the unitary patent will change the nature of the court structure in Europe. The Agreement on a Unified Patent Court (the ‘UPC Agreement’), which will create the new court, had to be harmonized with the Brussels I Regulation which also regulates European jurisdiction for patent infringement lawsuits. Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters had already been significantly amended. The revision of the recast Brussels I Regulation, which took place through Regulation 542/2014 on the amendment of Regulation 1215/2012, took effect on 30 May 2014. From 10 January 2015 onwards the core rules on jurisdiction set out in those Regulations apply to patent disputes. The time has definitely come to consider the future of European patent infringement proceedings. The revised Brussels I Regulation creates a law that is unusual in Europe and in relation to foreign parties, at least in the form of statutory provisions. In relations with Switzerland, the Lugano Convention will have to be adjusted. Equal treatment of the countries party to the Lugano Convention with Member States of the EU is one of the demands made in the present article. This article also seeks to introduce readers to the imminent changes in the law and to point out problems. The lively more recent case law of the CJEU concerning cross-border infringements will not be discussed for reasons of length. However, it must be incorporated into the new scheme of things.

The Recast Brussels I Regulation and Arbitration: Revisited or Revised?

The revision of the Brussels I Regulation has come to an end. During the revision process the exclusion of arbitration from the scope of the Regulation has been much debated. This debate was not only ignited by the revision of the Regulation, but also by the decision of the European Court of Justice (ECJ) in the West Tankers case. The predominant interpretation of the existing exclusion of arbitration from the scope of the Regulation entails that a judgment disregarding or breaching an arbitration agreement will circulate in the European Union according to the rules of the Regulation. This entails an increased risk of parallel proceedings and conflicting decisions because the parties race to pursue both court litigation and arbitration proceedings. These implications have not been amended by the recast Regulation, which keeps the existing exclusion of arbitration from the scope of the Regulation. However, the recast Regulation seeks to clarify the arbitration exclusion. Moreover, the adopted approach seeks to avoid the consequences of the predominant interpretation of the arbitration exclusion made apparent by the ECJ in the West Tankers judgment.

Current Developments∵The Recast Brussels I Regulation

The most important amendments to the Brussels I Regulation as adopted during the recast negotiations are presented and discussed. The author focuses on four subjects: first, the application of Brussels I to cases where the defendant is domiciled outside the EU; second, the abolition of exequatur; third, the improved efficiency of exclusive choice-of-court agreements; and, fourth, the relationship between litigation and arbitration.

Die Gerichtsstandsvereinbarung nach der Neuen Eugvvo

The recast Brussels I Regulation adopts an expansion of the personal and geographical scope of application of forum selection clauses because it will no longer matter whether one of the parties has its domicile in one of the Member States. Moreover, the recast Regulation provides that the validity of the forum selection clause is to be determined according to the law of the chosen forum. However, the disadvantage of this rule is that the validity of the forum selection clause will again be determined according to different criteria. Moreover, Article 25 of the revised Regulation clarifies that a forum selection clause does not need to share the fate of the contract in which it is to be found. In order to prevent abusive litigation tactics, Article 31(2) of the revised Regulation reverses the lis pendens stay. Not the court later seised, but any court other than the one designated in the forum selection agreement must stay the proceedings until such time as the designated court decides on its jurisdiction. One may wonder whether it is sufficient for this rule to apply that the plaintiff alleges the presence of an exclusive forum selection clause. If so, the defendant in the court first seised could file suit in a state in which proceedings are known to take a long time and allege the presence of an exclusive forum selection clause in favour of the courts of that state, thus torpedoing the suit first filed. One will therefore need to require that the court seised on the basis of a forum selection agreement examine the existence of a such an agreement.

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?