Regulation (EC) 44/2001, otherwise known as "Brussels I", regulates jurisdiction and the enforcement of judgments in civil and commercial matters within the EU. The EU has published a recast form of Brussels I (EU Reg 1215/2012) (known variously as "the Recast Regulation", "Brussels Ia", or "Brussels I Bis"). This will apply to proceedings instituted on or after 10 January 2015.
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Broadly speaking, the basic jurisdictional rules remain the same. The starting point is the domicile of the defendant (Article 4(1)). There are some potential additional jurisdictions, eg in matters relating to contract, in favour of the courts for the place of performance of the obligation in question (Article 7(1)(a)).
However, the Recast Regulation makes a number of changes, of which practitioners involved in cross-border claims should be aware. The 3 principal changes are as follows.
Recognition and Enforcement
The procedure for enforcement is streamlined. The judgment creditor is no longer required to obtain a declaration of enforceability before enforcing. Instead, they need only present the enforcing court with a copy of the judgment and a standard certificate (Articles 42, 53 and Annex 1) before proceeding to the enforcement measures available under local law. The onus is on the judgment debtor to challenge recognition or enforcement.
Courts outside the EU
Brussels I, generally speaking, provides that if a court has jurisdiction (eg based on the defendant's domicile) it must exercise it. This is so even if there is a compelling argument that a non-EU court would be more appropriate to hear the matter (eg Owusu v Jackson, Case C-281/02). This is, of course, a departure from the common law where the courts retained a broad discretion to stay a claim issued in England and Wales in favour of proceedings in a foreign court. EU courts can, in some circumstances, halt proceedings in favour of non-EU courts when there is a jurisdiction clause in favour of a non-EU court. However, the scope of this limited exception is unclear.
The Recast Regulation introduces a discretion for EU courts to stay proceedings in favour of a non-EU court. This is a significant change in principle. But, it should be noted, it only applies when at least 3 conditions are met (Articles 33 and 34): the non-EU court is seised first; a judgment given by the non-EU court can be enforced in the EU member state concerned; a stay is necessary for the proper administration of justice.