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
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
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.