Regulation Recast Research Articles

Rozhodujúce právo podľa prepracovaného znenia nariadenia o insolvenčnom konaní

The author in the article entitled “Applicable law under the recast of regulation on insolvency proceedings” analyses selected issues relating to the applicable law under the Regulation (EU) 2015/848 of the European parliament and of the Council of 20 May 2015 on insolvency proceedings (recast) in the field of third parties´ rights in rem, set-off, reservation of title, contracts relating to immoveable property, payment systems and financial markets, contracts of employment, rights which are subject of registration, industrial rights, detrimental acts and effects of insolvency proceedings on pending lawsuits or arbitral proceedings. The author also refers to the related decisions of Court of Justice of the European Union and problems which occurred in the application practice. The aim of the article is to analyse the issue of applicable law under the recast of the regulation of insolvency proceedings relating to cross-border insolvency proceedings in member states of the European Union.

The Opening of Multijurisdictional Insolvencies Through the Prism of the Recast Regulation 848/2015

The Insolvency Regulation constitutes a remarkable legal instrument introducing a new era on cross-border insolvencies in the EU. Corresponding to the constant request for a uniform procedural law regime to govern insolvency proceedings, the Regulation’s 1346/2000 contribution towards promoting intra-community trade is estimated as of paramount significance, since it enhanced legal certainty and predictability through the establishment of uniform criteria, determining the State courts in the place of COMI (‘center of main interests’) as the judicial authority conferred with international jurisdiction to adjudicate upon insolvency cases. However, shortcomings that have been emerged in practice called for modifications to the current framework which were finally introduced by the Recast Regulation 848/2015.

BREXIT and English Jurisdiction Agreements: The Post-Referendum Legal Landscape

This article presents an early view of the impact of BREXIT on English jurisdiction agreements in international commercial contracts. It is almost certain that the Brussels I Recast Regulation will cease to apply in the UK after BREXIT and as a result the near automatic recognition and enforcement of English court judgments in the continuing EU (and Lugano Convention Contracting States) and vice versa will be in jeopardy. Contrary to some recent speculation, it is unlikely that the Brussels Convention will revive and the option to adhere to the Lugano Convention also does not seem to be viable for a newly ‘liberated’ UK. The article suggests practical solutions to minimise the litigation risk arising from English jurisdiction agreements in relation to the EU. Significantly, the Hague Convention on Choice of Court Agreements can be harnessed to regulate English exclusive jurisdiction agreements in relation to the EU in matters within the scope of the Convention. If the courts of a post-BREXIT EU Member State are seised in a case concerning an English exclusive jurisdiction agreement, Article 6 of the Hague Convention should accord deference to the elected forum.

What is in a Name? Group Coordination or Consolidation Plan-What is Allowed Under the EIR Recast?

The European Insolvency Regulation Recast allows for group coordination proceedings if insolvency proceedings have been opened against different companies belonging to a single group. Group coordination proceedings imply the drafting of a group coordination plan in order to define an integrated solution to the group's problems. This plan shall not include recommendations as to any consolidation of proceedings or insolvency estates. Against the backdrop of the evolving notion of ‘procedural consolidation’ and the fact the insolvency practitioners and courts concerned have to cooperate and communicate with each other, this prohibition is misplaced and should be interpreted to mean only that main or secondary proceedings opened in a member state cannot be transferred to another jurisdiction. The effective administration of insolvency proceedings of related group companies often demands an integrated solution to the group's problems, which will inevitably lead to some form of consolidation. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd.

Exclusive Choice of Court Agreements: Some Issues on the Hague Convention on Choice of Court Agreements and its Relationship with the Brussels I Recast Especially Anti-Suit Injunctions, Concurrent Proceedings and the Implications of Brexit

This research paper argues that the Hague Convention’s system of ‘qualified’ or ‘partial’ mutual trust may permit anti-suit injunctions, actions for damages for breach of exclusive jurisdiction agreements and anti-enforcement injunctions where such remedies further the objective of the Convention. However, intra-EU Hague Convention cases may arguably not permit remedies for breach of exclusive jurisdiction agreements as they may be deemed to be an infringement of the principle of mutual trust and the principle of effectiveness of EU law (effet utile) which animate the multilateral jurisdiction and judgments order of the Brussels I Recast Regulation. The dynamics of the relationship between Article 31(2) of the Recast Regulation and Articles 5 and 6 of the Hague Convention will also be mapped in this paper. It will be argued that the Hartley-Dogauchi Report’s interpretative approach has much to commend it as it follows the path of least resistance by narrowly construing the right to sue in a non-chosen forum as an exception rather than the norm. This exceptional nature of the right to sue in the non-chosen forum under the Hague Convention can be effectively reconciled with the Brussels I Recast Regulation's reverse lis pendens rule under Article 31(2). This will usually result in the stay of the proceedings in the non-chosen court as soon as the chosen court is seised. The likely outcome post-BREXIT is that the regime applicable between the UK and the EU (apart from Denmark) in relation to exclusive jurisdiction agreements within the scope of the Hague Convention will be the Hague Convention.

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

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.

Andrew Dickinson and Eva Lein, The Brussels I Regulation Recast

Andrew Dickinson and Eva Lein, <i>The Brussels I Regulation Recast</i>

The EU Insolvency Regulation Recast: Scope and Rules on Jurisdiction

The new text of the European Insolvency Regulation (the “EIR Recast”) has addressed a large number of gaps and ambiguities raised by the practical application of the current version. This paper offers a critical analysis of three particular issues: the new scope of application of the EIR Recast, the provisions on the determination of the debtor’s Centre of Main Interests, and the scope of the jurisdiction of the courts of the Member State opening insolvency proceedings.

Something Old, Something New: Recasting the European Insolvency Regulation

This paper critically evaluates the recasting of the European Insolvency Regulation ‐ Regulation (EU) 2015/848 ‐ in the context of the EU Europe 2020 growth strategy. According to the Council of Ministers, through the protection of creditors and the survival of business, the new legislation should contribute to the preservation of employment in these challenging times. The paper argues that worthwhile improvements have been made by extending the scope of the regulation; clarifying and confirming contentious areas of interpretation; smoothing the inter‐relationship between main and secondary insolvency proceedings and improving information flows. But the overall effect is to enhance complexity. The recast Regulation carries the whiff of political compromise and, at times, seems to point in different directions at the same time.

Private International Law Rules in the Insolvency Regulation Recast: A Reform or a Restatement of the Status Quo?

The European Parliament, after a lengthy debate, has eventually approved a reform of Regulation 1346/2000 on cross-border insolvency proceedings (hereinafter, the ‘Insolvency Regulation Recast’), which provides for significant innovations of the original Regulation, such as a EU-wide register of insolvencies and a new proceeding for insolvencies of corporate groups. The fundamental logic of the Regulation, however, does not change: the Recast does not harmonise insolvency rules at EU level and its goal is still selecting competent venues and applicable insolvency regimes. In many respects, the reform simply codifies CJEU’s case law, with the aim of increasing legal certainty. The Insolvency Regulation Recast is however innovative regarding the definition of COMI, by repealing the causality relation between criterions of ‘permanence’ and ‘ascertainability’. Eventually, the Recast aims at better coor- dinating secondary proceedings and main proceedings; in this regard, it introduces ‘synthetic secondary proceedings’, whereby the insolvency practitioner of a main proceeding undertakes to respect other Member States distributional criterions in order to avoid the opening of a secondary proceeding. The real impact of these innovations is however uncertain.

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.

L’Efficacité Internationale des Jugements

Pursuing a policy of maximum mutual confidence and automatic recognition of judgments since 2000, the lawmakers of the European Union have caused concern that the traditional ideas and techniques of private international law (a transboundary cooperation among “equals”) might be abandoned in favour of a centralised federal system of justice, in which the judges of one State may render decisions that the organs of the other States must recognise and enforce without exception. The various controversies caused by the recast of the Brussels I Regulation have permitted the drafters to reorient these goals and policies and to give them a new legal appearance. In the new Chapter III of the recast Regulation (on recognition and enforcement of judgments), the formalities of the exequatur were abolished without also taking the public policy control and the possibility of collateral attacks away from the recognition State. The system is evolving toward mutual trust and reasonable assimilation of domestic and foreign judgments, which translates into increased effectiveness abroad of foreign judgments with the possibility of a later finding of non-enforceability in the recognition State. The new regime of inter-European effectiveness should be seen as a valuable model ; it should be possible to propagate it in the context of other European regulations on judicial cooperation, which could in turn contribute to the emergence of a common system that is convincing and worth exporting.

Changes to jurisdiction based on exclusive jurisdiction agreements under the Brussels I Regulation Recast

The Brussels I Regulation Recast has improved the efficacy of jurisdiction agreements in favour of the courts of the Member States of the European Union. It has also imported from the Hague Convention of 30 June 2005 on Choice of Court Agreements a new rule on substantive validity for jurisdiction agreements. Both reforms are welcome but raise new questions for the interpreter.

Private International Law Rules in the Insolvency Regulation Recast: A Reform or a Restatement of the Status Quo?

The European Parliament, after a lengthy debate, has eventually approved an Insolvency Regulation Recast, which amends Regulation 1346/2000 on cross-border insolvency proceedings. The Recast provides for significant innovations of the original Regulation, such as a EU-wide register of insolvencies or a new proceeding for insolvencies of corporate groups. The fundamental logic of the Regulation, however, has not been changed: the Recast does not harmonise insolvency rules at EU level and its goal is still selecting competent venues and applicable insolvency regimes. In many respects, the Recast simply codifies CJEU’s case law, with the aim of increasing legal certainty. The Recast is however innovative regarding the definition of COMI, by repealing the causality relation between criterions of “permanence” and “ascertainability”. Eventually, the Recast aims at better coordinating secondary proceedings and main proceedings; in this regard, it introduces “synthetic secondary proceedings”, whereby the insolvency practitioner of a main proceeding undertakes to respect other Member States distributional criterions in order to avoid the opening of a secondary proceeding. The real impact of these innovations is uncertain and depends on how national case law will interpret and apply the new rules.

La concesión de venta y la competencia judicial internacional

La cuestión de la calificación de los distintos tipos de contratos de distribución a efectos del art. 5.1 del Reglamento Bruselas I bis (actual art. 7.1 Reglamento Bruselas I bis) ha sido muy controvertida en los últimos años tanto jurisprudencial como doctrinalmente. El presente artículo, después de analizar las posiciones existentes en relación con esta cuestión, defiende la postura que ha adoptado recientemente el Tribunal de Justicia de la Unión Europea respecto a un contrato de concesión de venta, esto es, la calificación de los contratos de distribución como contratos de prestación de servicios a cargo del distribuidor.

Load match optimisation of a residential building case study: A cross-entropy based electricity storage sizing algorithm

Abstract The EU EPBD recast regulation marked the application of the net zero energy building (Net ZEB) concept in all fields of building construction in Europe as a building able to generate as much energy as it consumes over a selected time frame. A more detailed insight is however needed, as even if a building achieves a long-term energy balance between energy generated and consumed, smaller time scales must also be considered. For example, from the utility’s point of view, if a Net ZEB is a heavy consumer in the winter, it will appear to be quite similar to a conventional building, requiring the use of additional generation. The increase in the generation-load match means reducing the stress to the energy grid, the peak system energy required, and the wasted energy, thus avoiding unnecessary generation and, consequently, limiting carbon-related emissions. In this paper, the authors address the problem of determining the optimal storage size starting from the data of an Italian nearly net zero energy building that produced a detailed database on generated and consumed electricity. The study presented in this paper analyses the following steps: modelling of energy consumption through non-parametric estimators, modelling of energy generation through detailed models available in the literature, quantification of the load match levels for existing case studies, analysis of the state of charge (SOC) for a given model of the energy consumption probability distribution, and the identification of the minimum size of the storage required to improve energy load match. The results show that even when selecting unfavourable boundary conditions it could be possible to lower the energy import from the electricity grid by approximately 40%, that can possibly rise to more than 90% during summer.

The contribution of jurisdiction as a technique of demand side regulation in claims for the recovery of cultural objects

This article considers the role of jurisdiction in supporting private claims for the cross-border recovery of cultural objects from an EU member state. In particular, this article considers a new, “sui generis”11 A Briggs, Private International Law in English Courts (Oxford: University Press, 2014), 283. special jurisdiction rule in Article 7(4) of Regulation EU 1215/2012, the Brussels I Recast Regulation. Article 7(4), inter alia, enables “(A) person domiciled in a Member State to be sued in the courts of another Member State […] as regards a civil claim for the recovery, based on ownership, of a cultural object as defined in point 1 of Article 1 of Directive [93/7/EEC] initiated by the person claiming the right to recover such an object, in the courts for the place where the cultural object is situated at the time when the court is seised”. This special jurisdiction rule is a welcome development towards facilitating the return of a cultural object from the place where it is seized (for example where there is market demand or when the object is in transit), to a party asserting ownership. In practice the utility of this special jurisdiction rule will depend upon its scope and interpretation by the Court of Justice together with its ability to offer a “counterbalance”22 B Hess, “The Proposed Recast of the Brussels I Regulation: Rules on Jurisdiction”, in F Pocar, I Viarengo and F C Villata (eds), Recasting Brussels I: Proceedings of the Conference Held at the University of Milan on November 25–26, 2011 (CEDAM, 2012), 107. to Article 4 and the other special grounds of jurisdiction in the Brussels I Recast Regulation. This paper concludes that this special jurisdiction rule is a key step towards an EU-led “transnational policy of protection of cultural property”,33 A Chong, “Transnational Public Policy in Civil and Commercial Matters”, [2012] Law Quarterly Review 88–113, 106. which may require further approximation of EU private international law in the future.

Consumer Collective Redress under the Brussels I Regulation Recast in the Light of the Commission's Common Principles

This paper examines the state of play on cross-border consumer collective redress in Europe in the light of three important instruments: (1) the Brussels I Regulation (Recast) (2) the Commission Communication entitled “Towards a European Horizontal Framework for Collective Redress”; and (3) the Commission’s Recommendation of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law. The study highlights general disappointment with the new European Union instruments. The disappointment stems from the mediocre consumer collective redress likely to be achieved by the aforementioned three instruments.

Estimation of the chemical-induced eye injury using a Weight-of-Evidence (WoE) battery of 21 artificial neural network (ANN) c-QSAR models (QSAR-21): Part II: Corrosion potential

This is part II of an in silico investigation of chemical-induced eye injury that was conducted at FDA’s CFSAN. Serious eye damage caused by chemical (eye corrosion) is assessed using the rabbit Draize test, and this endpoint is an essential part of hazard identification and labeling of industrial and consumer products to ensure occupational and consumer safety. There is an urgent need to develop an alternative to the Draize test because EU’s 7th amendment to the Cosmetic Directive (EC, 2003; 76/768/EEC) and recast Regulation now bans animal testing on all cosmetic product ingredients and EU’s REACH Program limits animal testing for chemicals in commerce. Although in silico methods have been reported for eye irritation (reversible damage), QSARs specific for eye corrosion (irreversible damage) have not been published. This report describes the development of 21 ANN c-QSAR models (QSAR-21) for assessing eye corrosion potential of chemicals using a large and diverse CFSAN data set of 504 chemicals, ADMET Predictor’s three sensitivity analyses and ANNE classification functionalities with 20% test set selection from seven different methods. QSAR-21 models were internally and externally validated and exhibited high predictive performance: average statistics for the training, verification, and external test sets of these models were 96/96/94% sensitivity and 91/91/90% specificity.