Regulation Recast Research Articles

Exploring the Evolution of Contractual Concepts within Regulation No 1215/2012 Through CJEU Judgments: Civil and Commercial Matters, Contracts, Tenancies of Immovable Property, and Provision of Services Under Examination

Starting with the ruling of the Court of Justice of the European Union in the Obala case, this article explores: how the Court has redefined the concepts of ‘contract matters’ and ‘tort, delict, or quasi-delict matters’; actions related to ‘tenancy agreements for immovable property’ versus ‘rights in rem’; and the evolving interpretation of ‘services’ within the Brussels I Recast Regulation on jurisdiction, recognition and enforcement of judgments in civil and commercial matters. It also illustrates the discrepancies in the analysis of the term ‘civil and commercial matters’. The Obala ruling has led to changes in how these concepts are understood and studied in certain contexts, thereby reshaping their interpretative contours. As a result, this article conducts a retrospective analysis to grasp these changes and their implications.

The Brussels IIb Regulation – Most significant changes compared to its predecessor and enhancement of the 1980 Hague Convention on International Child Abduction

The Brussels IIb Regulation, dealing with proceedings in matrimonial matters, those of parental responsibility and international child abduction cases, is the newest instrument of the European Union in international family law. The article critically evaluates its most significant changes compared to its predecessor, the Brussels IIa Regulation, in the fields of jurisdiction and of recognition and enforcement. In addition, it analyses how the Brussels IIb Regulation optimises the provisions of the 1980 Hague Convention on International Child Abduction between the member states of the European Union. The article argues that the regulation is overall a helpful and welcome addition to international family law because it strengthens the welfare of the child and enhances the practical functionality and normative structure of its predecessor. Nevertheless, scope for further improvements in another recast regulation is identified.

Perspectives of Extraterritorial Jurisdiction for Environmental Damage in the Proposal of the European Directive on Corporate Sustainability Due Diligence

Abstract The Proposal of the Directive regarding the Corporate Sustainability Due Diligence provides new judicial protection for environmental damages and climate litigation caused by corporations, even in an extraterritorial context, considering the Directive’s scope of application. This prompts a discussion about the exercise of an extraterritorial jurisdiction by Member States’ courts. At European Union level, the titles of jurisdiction, identified in the Brussels I Recast Regulation, allow foreign victims to proceed before the court of a Member State, but only if the parent company is established in that specific Member State. Otherwise, these criteria are generally considered inadequate and insufficient. The proposed Directive seems to be a new opportunity to reform the European private international law, aligning it with the right to access to justice, as provided by Article 10 of Universal Declaration of Human Rights and Article 6 of the European Convention on Human Rights.

Enforcement of Awards v. Enforcement of Judgments in the EU: Arbitration Must Catch Up

Arbitral awards are easier to enforce across borders than court judgments, through the New York Convention, and this is one of arbitration’s key advantages compared to court litigation. In the European Union, however, this comparative advantage has been lost since the Brussels I Regulation Recast provides for the enforcement of judgments throughout the Union without the need for a local exequatur, whilst arbitral awards still require enforcement proceedings in each country. This article submits that arbitration must catch up and proposes a limited amendment to the recast Regulation, providing that arbitral awards issued in the European Union are capable of enforcement throughout the Union on the basis of a single exequatur in the jurisdiction of the seat. The proposed single exequatur at the seat will be optional; there will be no ‘double exequatur’ requirement. arbitration, award, enforcement, exequatur, recognition, single exequatur, Brussels I Regulation Recast, New York Convention, parallel proceedings

The regulation of data-driven political campaigns in the EU: from data protection to specialized regulation

Abstract Data-driven political campaigns that heavily rely on political microtargeting are becoming more and more widespread, both in Europe and globally. Over the past years, politicians running for office have globally relied on data about their voters to enhance the effectiveness of their political campaigns through profiling of voters and approaching them through targeted messages on social media. The article identifies the characteristics and uses of data-driven political campaigns and elaborates on the more general question of threats of these campaigns. Further, the article critically examines the provisions of the General Data Protection Regulation that are the most relevant for this type of campaigns. In particular, the article focuses on the rules regarding the legal basis for processing of political opinions of voters and the provision on automated decision-making that offers limited possibilities for decision-making without human intervention. Moreover, the article examines the amended EU legislation on funding of European political parties that exhibits a clear focus on protection of voters’ data. Furthermore, the article considers recently adopted Digital Services Act and two recent EU legislative proposals that will regulate targeted political advertising, namely, the Proposal on transparency and the Recast of Regulation 1141/2014. Finally, the article concludes by addressing the evolution of the regulatory framework applicable to the data-driven political campaigns in the EU.

Performance of Characteristic Obligation in Multiple Places under Brussels I Recast Article 7(1)(b): Legal Certainty and Predictability over “a Close Connection”

This article offers a critique of the teleological interpretation of the provision of Art. 7(1)(b) of the Brussels I Regulation Recast, adopted by the Court of Justice of the European Union, in relation to the cases where there are several places of performance. First, the nature of the jurisdiction rules in civil law is discussed and the main purpose of the special jurisdiction rules is identified. In this context, it is emphasized that legal certainty and predictability are the main objectives of the jurisdiction rules, while proximity is an instrument to achieve these main objectives. Secondly, the “principal place of performance” approach of the Court of Justice of the European Union regarding the provision of Art. 7(1)(b), in cases where there are several places of performance, is discussed. It is demonstrated that the Court of Justice of the European Union’s quest for the “closest link” is not in accordance with the spirit of the Recast. Aside from the difficulty of determining the principal place of performance; the search for the closest link being the basis of the determination of the principal place of performance is criticized. Additionally, this approach is remarkable as to how it is close to the application of “forum (non) conveniens” in common law. As a result, it is proposed to abandon the “principal place of performance” approach in cases where the place of performance is located in several Member States; and it is argued that it is necessary to recognize that the courts of several places of performance are competent.

Cross-Border Document Service Procedures in the EU from the Perspective of Italian Practitioners—The Lessons Learnt and the Process of Digitalisation of the Procedure through e-CODEX

An effective legal framework for judicial cooperation in the field of the service of documents is a keystone for the effective functioning of the area of freedom, security and justice, as referred to in the Treaty on the EU. In particular, the proper service of a claim to the addressee is a necessary step for starting a proceeding and, simultaneously, an essential requirement for exercising the right of defence. The EU has adopted specific provisions to remodel the traditional channel of documents’ transmission with smoother solutions that assist cross-border judicial proceedings. Despite this, the European service procedure is not that straightforward and can still be very complex for most users, causing additional costs and legal uncertainty. Against this background, this article explores how the cross-border service of documents works in practice. It presents the findings resulting from empirical exploratory research carried out in Italy to assess the concrete use and usability of the European rules adopted to simplify, speed up and reduce the costs of cross-border service of judicial and extrajudicial documents in civil and commercial matters, also in the view to support a possible digitalisation of the procedure. Building on empirical data, the paper brings to light the existing hiatus between the service procedure ‘on the books’ and the reality of how the relevant provisions are applied daily, so as to provide solid ground for reflecting on the current situation and on the impact that the recast Regulation 2020/1784/EU, which took effect in July 2022, will have to the supranational system of cross-border service of documents, in particular concerning the potential of the use of ICT to support it.

Cross-border Insolvency Protocols: Cooperation, Coordination, and Communication Duties under the European Insolvency Regulation Recast

Cross-border insolvency protocols are a practical phenomenon developed at the international level in the last 30 years. These protocols are agreements entered by the insolvency practitioners to facilitate cooperation and communication between insolvency practitioners and courts involved in cross-border insolvency proceedings. Protocols have been mentioned but not regulated by the European Insolvency Regulation Recast. This contribution seeks to analyse the aims, principles, and standard features of the protocols emerging in practice. Second, it aims to evaluate how this phenomenon fits with the duties of cooperation, coordination, and communication within the European Insolvency Regulation Recast to define the scope and role of protocols within the EU member states. Cross-border insolvency, protocols, transnational, cooperation, coordination, communication, European Insolvency Regulation

Party Autonomy Under the New Brussels IIa (Recast) Regulation: Stalemates and Innovation

Party Autonomy Under the New Brussels IIa (Recast) Regulation: Stalemates and Innovation

ASYMMETRIC JURISDICTION CLAUSES AND THE ANOMALY CREATED BY ARTICLE 31(2) OF THE BRUSSELS I RECAST REGULATION

AbstractThe English Court of Appeal and German Bundesgerichtshof recently decided that Article 31(2) of the Brussels I Recast Regulation applies to asymmetric jurisdiction clauses. This article contends that while this conclusion is sound, separating the ‘clause’ into two ‘agreements’ to reach it is not. This disaggregation prevents a solution to the anomaly that Article 31(2) creates for asymmetric clauses, where a lender sues under its option and the borrower subsequently sues in the anchor court. This article proposes a solution, based on a uniform characterisation of the clause as a whole, which protects the lender's option and mitigates the risk of parallel proceedings.

Jurisdiction and Costs in Recent Inter-EU Cases of Démenti and Apology for Falsifying History

This study covers two issues concerning the intra-EU proceedings in the cases of personality rights infringement. The core of the analyzed matters are the special (alternative) jurisdiction and the costs of the proceedings. These problems are interesting both from the theoretical and the practical standpoints. The discussed judgments concern the dissemination of statements that constitute a historical falsification that is usually caused by using the expression Polish concentration camps instead of Nazi-German concentration camps. The CJEU recently address the issue of the special (alternative) jurisdiction based on Art. 7 (2) Brussels I Recast Regulation in such cases in the judgment from June 17, 2021, for the case C-800/19. This study analyses this judgment and the exclusion of jurisdiction based on ‘center of life interests’ in such cases for the ‘indivisible’ claims (e.g. the claim for apology). The problem of the costs is discussed from the perspective of the enforcement proceedings of foreign judgments in the intra-EU cases based on the German Supreme Court’s judgment from July 19, 2018 (IX ZB 10/18). The high costs of such proceedings based on the German Code of Civil Procedure were analyzed from the perspective of the access to court rule based on Article 6 (1) ECHR and the jurisprudence of EctHR.

Private International Law Aspects of Arbitrator Liability: A European Perspective Post-Brexit

This article investigates how various private international law (PIL) instruments relevant in the European context, post-Brexit, deal with questions of jurisdiction, applicable substantive law, and recognition and enforcement pertaining to the contractual liability of arbitrators. Based on an analysis of applicable European Union (EU) case law and the drafting history of, amongst others, the Brussels I (Recast) Regulation and its predecessors, it submits that that the exclusions included in such Regulation with regard to arbitration proceedings do not apply to the Arbitration Contract between the Parties and the Arbitrator or Arbitrators. Second, we submit that the law applicable to a claim for breach of contract by an Arbitrator must be found through the application of Rome I. Rome I provides that the law of the country where the Arbitrator that is alleged to be liable vis-à-vis (one of) the Parties has his or her habitual residence. With respect to enforceability of court judgments pertaining to arbitrator liability, we discuss and assess the Pandora’s Box that Brexit appears to have opened. This assessment leads us to conclude that, whilst the framework put in place by Brussels I (Recast) and the Lugano Convention remains largely in place, on the departure of the United Kingdom from the existing legal frameworks, enforcement and recognition of court judgments between the United Kingdom and the EU will, in the absence of a jurisdiction clause, largely shift to provisions of national law and/or bilateral treaties. Arbitration, International Arbitration, Brussels I (Recast), Rome I, Hague Convention, Lugano Convention, Brexit, Private International Law, Arbitrator, Liability

International Employment Cases Post-Brexit: Choice of Law, Territorial Scope, Jurisdiction and Enforcement

Abstract The globalisation of employment relationships means that the international aspects of employment law are important in an ever growing number of cases. In particular, international employment cases may raise issues relating to international jurisdiction, choice of law and territorial scope. Before the UK left the EU, directly effective EU Regulations regulating jurisdiction and choice of law provided the rules which are applied in a large number of cases. This article outlines the changes post-Brexit and the resulting overlapping regimes which now govern international employment cases. The choice of law rules in the Rome I Regulation and Rome II Regulation remain as part of retained EU law. International jurisdiction will now be governed entirely by national law rules. However, for cases in the High Court, the common law rules are amended to mirror the provisions which are previously applied under the Brussels I Regulation recast. Although in many cases the rules look the same, different principles of interpretation will apply, and, longer term, now that the rules are not binding as matter of EU there will be scope to amend and reform the rules.

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.

The Shell Nigeria Judgments by the Court of Appeal of the Hague, a Breakthrough in the Field of International Environmental Damage? UK Law and Dutch Law on Parental Liability Compared

On 29 January 2021, the Court of Appeal of The Hague rendered three judgments in cases brought by Nigerian citizens who had suffered damage as a result of leaks from oil pipelines. The proceedings stand out because they are being conducted in the Netherlands, not only against Shell Nigeria, but also against the former UK and Dutch parent companies of the Shell group, as well as against the current group holding company Royal Dutch Shell Plc. The Court of Appeal, in line with the Vedanta judgment of the UK Supreme Court, makes an extensive analysis of the structure of the Shell group and, based thereon, derives (albeit limited) a duty of care for the parent company Royal Dutch Shell Plc (RDS) vis-à-vis the claimants. corporate social responsibility, international environmental damage, piercing the corporate veil, EEX Regulation (recast), Brussels I-bis Regulation, Rome II Regulation

DETERMINING THE PLACE OF PERFORMANCE UNDER ARTICLE 7(1) OF THE BRUSSELS I RECAST

Abstract This article calls for a reassessment of the methodology in determining the place of contractual performance under Article 7(1) of the Brussels I Regulation Recast. The first part of the article deals with Article 7(1)(a). It argues that in light of the adoption of autonomous linking factors under Article 7(1)(b), more types of contracts presently not covered within the ambits of Article 7(1)(b) should centralise jurisdiction at the places of performance of their characteristic obligations. The second part of the article considers the way Article 7(1) operates when there are multiple places of performance under the contract. The test devised by the Court of Justice of the European Union in this regard is not only difficult to apply, but the application of the test also often does not guarantee a close connection between the claim and the court taking jurisdiction. This article argues that when a claim is made in respect of a contractual obligation to be performed in more than one Member State, Article 4 should be applied instead of Article 7(1).

Primjena regulative Brisel II bis na ostvarivanje prava na kontakt sa djetetom šireg porodičnog kruga lica

In this paper, the author explores the sources of European Union Law that regulate one segment of parental responsibility - the right of access to a child. The focal point of research is the transition from the conventional (interstate) regulation of judicial cooperation in marital disputes and parental responsibility issues to the regulation enacted by the European Union institutions, with specific reference to the Brussels II bis Regulation. First, the author briefly points out to its relationship with other relevant international law sources regulating this subject matter: the Hague Convention on the Civil Aspects of International Child Abduction; the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in the Field of Parental Responsibility and Measures for the Protection of Children; and other international sources of law. Then, the author examines in more detail its relationship with the Brussels II bis recast Regulation, which will be applicable as of 1 August 2022. In addition, the paper includes an analysis of the first case in which the Court of Justice of the European Union (CJEU) decided on the application of the Brussels II bis Regulation, at the request of granparents to exercise the right of access to the child. On the issue of determining the competent court which has jurisdiction to decide on how this right shall be exercised, the CJEU had to decide whether the competent court is determined on the basis of the Brussels II bis Regulation or on the basis of national Private International Law rules. This paper is useful for the professional and scientific community because it deals (inter alia) with the issue of justification of adopting a special source of law at the EU level, which would regulate the issue of mutual enforcement of court decisions on the right of access to the child. This legal solution was proposed by the Republic of France, primarily guided by the fundamental right of the child to have contact with both parents.

Differences Between the Recognition and Enforcement of Authentic Instruments and the Recognition and Enforcement of Judgments

The subject of the article is to analyse and compare the specificity of judgments and authentic instruments in terms of cross-border recognition and enforcement under the Brussels I Recast Regulation framework. Particular focus has been put on the practical aspects of the definition of an authentic instrument. Selected detailed issues arising against this background have been discussed with reference to the Polish legal order as well as the case-law of the Court of Justice of the European Union (CJEU). Based on the undertaken considerations, some proposals have been formulated regarding the enhancement of the free circulation of authentic instruments within the European Union.

Choice of law and jurisdiction in banking and finance contracts after Brexit: a perspective from Europe

English law is the preferred law for banking and finance transactions whether they take place in the United Kingdom or not. When opting for English law to govern a contract, the choice of the jurisdiction of the English courts usually follows suit. The European Union’s favourable regimes of several recognition and enforcement of Judgments, especially the Brussels I Recast regulation, have made it even more attractive for member state’s banks. But given that this regime changes after Brexit, will this privileged position of the UK be jeopardised?

UNDERSTANDING CLAIM PROXIMITY IN THE EU REGIME OF JURISDICTION AGREEMENTS

AbstractThe Brussels I Recast Regulation entitles business actors to agree on which court(s) will have jurisdiction but restricts the effectiveness of such jurisdiction agreements to disputes ‘which have arisen, or which may arise, in connection with a particular legal relationship’. This article fills a gap in the academic literature by examining the content and implications of this necessary connection (proximity) between the claim and the legal relationship between the parties. First, it characterises claim proximity as a question of party autonomy by distinguishing it from the subject matter of the jurisdiction agreement, which is an issue of contract interpretation. Second, it scrutinises the foreseeability test which has been frequently used by the CJEU in order to determine claim proximity, highlighting its main operational aspects. Building on both theoretical considerations and some cases where the foreseeability test has been used by domestic courts, this article provides clarifications about the scope, the proper functioning and the limits of such a test in order to raise awareness regarding the difficulties that may arise in its use in court to determine claim proximity and therefore assess jurisdiction.