Brussels 1 Regulation: International Law

**[Now to Brussel 1 Regulation -- how we ascertain or determine the jurisdiction amongst the member states of the union]** **Main areas:** Brussels 1 International Commercial arbitration a Other topics we will cover if we have time: Inca terms Some issues about international cooperation Cros...

**[Now to Brussel 1 Regulation -- how we ascertain or determine the jurisdiction amongst the member states of the union]** **Main areas:** Brussels 1 International Commercial arbitration a Other topics we will cover if we have time: Inca terms Some issues about international cooperation Cross boarder insolvency proceedings [Brussels 1] - Together with Rome 1, critical piece of legislation concerning EU private international law -- law applicable to contracts, **determination of competent jurisdiction and recognition of foreign judicial decisions -- governed by brussels 1 -- shows importance of this text** Jurisdiction - Comes from uiris dicale meaning to say the law - Means the power to ascertain the law in a certain case, to declare the law in a certain case - In technical terms -- the scope of power to make a decision that corresponds to a certain situation -- specifically with judicial issues it is the scope of the power of a court of law, competence to solve a dispute making a decision and applying a certain law - Delicate concept -- if we admit a certain jurisdiction we are admitting the authority of that institution to make a decision that shall be respected -- enormous power - How to determine the competent jurisdiction? Multiple formulae - Traditionally, art14 of French code establishes a nationalistic perspective of jurisdiction suggesting the competent court would be determine by the domicile of the claimant - Spanish law approach is (also under EU law) -- according to defendants domicile -- approach here is completely differet, assumed that for fair trial it must be defendants domicile because it is reasonable to assume that only the sphere of the defendant he or she will have the chance to collect the relevant evidences to defend him or herself - England and wales -- to do with physical location of defendant, don't have to be domiciled but just be there -- you could be on holiday and court would have power against you -- this is not reflective of EU law - The way in which we traditionally establish criteria for determination of jurisdiction can be very different Two more situations under common law which don't exist under EU law - Notion of Committee -- an English court even if competent according to law can give up its own jurisdiction in favour of another court if they believe they are in a better position to trial the case, facts happening there, witnesses being there etc, EU can't do this - English institution of anti-suit injunction openly dismissed by ECourtJ -- court can issue these ordering a party not to file a law suit before another court. E.g you have an agreement whereby every dispute resulting from this contract shall we decided by the courts of the city of London, one of the parties understands this agreement was void due to X, competent courts were indeed courts of Milan, this party brings legal action against the other to courts of Milan, the party which is not satisfied with this approach and who thinks that London courts were valid, can ask the English court to issue an anti-suit injunction whereby the courts would order the other party to abstain from issuing any legal proceeding to a court that isn't London -- if this violated serious penalty imposed. English courts tried to use this with EU courts whilst it was a member, the parties asked the ECJ whether this type of British order was in violation of EU law and there was a debate because English court is not telling Milan court to not take issue -- rather one of the parties so no dialogue between two courts, this concept not bought by ECJ who reached conclusion that this type of common law orders were null and void because violates the system of distribution of competence established under brussels 1 Brussel 1 does not apply to arbitration -- understood judges and arbitrators can produce these anti suit injunctions without prejudice of the effect t, no statement of ECJ saying this is a violation of Brussels 1 regulation because it has nothing to do with field of arbitrator -- therefore court can issue an anti-arbitration/ anti suit injunction **To begin with analysis of the text** - Civil an commercial matters -- private law - It is recast because second version of same legislation Scope established in **art 1** 1. *This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii).* - Logic prerequisite to apply the regulation and we have no definition of civil and commercial matter, we have to look to case law here, essentially private law, and there are some nuances \\ - Claim that Greek government suggested against the federal republic of Germany as a result of the nazi invasion WW2, it was obvious that this was an acta iure imperii and therefore could not be within the Brussels 1 Regulation Other exlusions... 2*.   This Regulation shall not apply to:* ------- ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ *(a)* *the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship or out of a relationship deemed by the law applicable to such relationship to have comparable effects to marriage;* similar to rome 1 ------- ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ ------- ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ *(b)* *bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings;* specific regulation concerning cross border insolvency, that is why it is excluded from application ------- ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ ------- -------------------- *(c)* *social security;* ------- -------------------- ------- ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- *(d)* *arbitration;* controversial, implication of this exclusion, para 12 of preamble **SEE BELOW** explains, court of a MS can make whatever decision it deems appropriate on arbitration matters according to its national law -- i.e I have nothing to say about arbitration (Brussels pov), if there is a debate on whether or not an arbitration agreement had to be decided by arbitration, if that question is solved by a court of law will not circulate through the mechanisms of recognition or enforcement established by brussels regulation -- i.e decisions made by EU court will be considered almost as national judicial decision in all other member states, when these court decision deal with nullity of arbitration agreement that circuit of recognition and enforcement disappears -- WILL RETURN TO THIS WHEN GOING OVER ABRITRATION ------- ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ------- ------------------------------------------------------------------------------------------------ *(e)* *maintenance obligations arising from a family relationship, parentage, marriage or affinity;* ------- ------------------------------------------------------------------------------------------------ ------- --------------------------------------------------------------------------------------- *(f)* *wills and succession, including maintenance obligations arising by reason of death.* ------- --------------------------------------------------------------------------------------- This Regulation should not apply to arbitration. Nothing in this Regulation should prevent the courts of a Member State, when seised of an action in a matter in respect of which the parties have entered into an arbitration agreement, from referring the parties to arbitration, from staying or dismissing the proceedings, or from examining whether the arbitration agreement is null and void, inoperative or incapable of being performed, in accordance with their national law. A ruling given by a court of a Member State as to whether or not an arbitration agreement is null and void, inoperative or incapable of being performed should not be subject to the rules of recognition and enforcement laid down in this Regulation, regardless of whether the court decided on this as a principal issue or as an incidental question. On the other hand, where a court of a Member State, exercising jurisdiction under this Regulation or under national law, has determined that an arbitration agreement is null and void, inoperative or incapable of being performed, this should not preclude that court's judgment on the substance of the matter from being recognised or, as the case may be, enforced in accordance with this Regulation. This should be without prejudice to the competence of the courts of the Member States to decide on the recognition and enforcement of arbitral awards in accordance with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958 ('the 1958 New York Convention'), which takes precedence over this Regulation. This Regulation should not apply to any action or ancillary proceedings relating to, in particular, the establishment of an arbitral tribunal, the powers of arbitrators, the conduct of an arbitration procedure or any other aspects of such a procedure, nor to any action or judgment concerning the annulment, review, appeal, recognition or enforcement of an arbitral award. -- in some cases there are national law provision guaranteeing the internation of courts, even in the cases where the courts lawfully intervene in arbitration and even if those cases, the courts will not enjoy the circuit of recognition by brussels 1 regulation given it has nothing to do with arbitration at all **[5/12/2024]** - Brussels 1 is keystone when looking at distribution of jurisdiction in civil and commercial matters Two more subject matters excluded from brussels 1 that we are yet to cover... ------- -------------------------------------------------------------------------------------------------------------------------------------------------------------- *(e)* *maintenance obligations arising from a family relationship, parentage, marriage or affinity;* - family rights already excluded, same rationale applies here ------- -------------------------------------------------------------------------------------------------------------------------------------------------------------- +-----------------------------------+-----------------------------------+ | *(f)* | *wills and succession, including | | | maintenance obligations arising | | | by reason of death.* -- | | | additional regulation governing | | | this field | | | | | | Article establishes basic | | | concepts for application of the | | | regulation -- judgement, court | | | settlement, member state of | | | origin etc -- not difficult to | | | understand | | | | | | The way in which comparative law | | | faces distribution of | | | jurisdiction can be very | | | different depending on the state | | | -- what is the main approach | | | established by brussels 1? | | | | | | - Claimant must follow | | | defendants domicile -- | | | claimant must file claim | | | before the courts of the | | | defendant domicile -- | | | enshrined in art 4 | | | | | | We are jumping to the substantive | | | provisions on jurisdiction, **art | | | 4** | | | | | | 1.   Subject to this Regulation, | | | persons domiciled in a Member | | | State shall, whatever their | | | nationality, be sued in the | | | courts of that Member State. | | | | | | 2.   Persons who are not | | | nationals of the Member State in | | | which they are domiciled shall be | | | governed by the rules of | | | jurisdiction applicable to | | | nationals of that Member State. | | | -- no special contribution here | | | | | | Justification for this is notion | | | that it is assumed in order to | | | display effective defence it is | | | easier to put in place that | | | defence before the courts which | | | appears to be closer to the place | | | where the defendant develops its | | | daily life -- reasonable | | | | | | **Art 5** | | | | | | 1.   Persons domiciled in a | | | Member State may be sued in the | | | courts of another Member State | | | only by virtue of the rules set | | | out in Sections 2 to 7 of this | | | Chapter. -- relevant because this | | | is exceptional, produces an | | | interpretative effect -- court of | | | justice of EU is very clear when | | | it interprets a provision of the | | | regulation, conclusion is that | | | provision detaching itself of the | | | general rule must be interpreted | | | in a restrictive fashion | | | | | | 2.   In particular, the rules of | | | national jurisdiction of which | | | the Member States are to notify | | | the Commission pursuant to point | | | (a) of Article 76(1) shall not be | | | applicable as against the persons | | | referred to in paragraph 1 -- | | | certain rules of national | | | jurisdiction cannot be applied to | | | persons who are domiciled in a | | | MS, question is what type of | | | rules are we dealing with here? | | | Traditionally these kind of rules | | | were those that establish an | | | exorbitant title of competence in | | | favour of a state, e.g Napoleonic | | | formula established in French | | | civil code | | | | | | Given the general rule you need | | | to know the exception in 2-7 of | | | first chapter are the first ones | | | you need to check when assessing | | | court competence, the general | | | principle -- Ds domicile is a | | | subsidiary criteria, but means | | | FIRST you must check for: | | | essentially if an exclusive | | | ground of jurisdiction is | | | applicable to the case, second | | | whether a case for prorogation is | | | applicable, and finally is there | | | a special ground of jurisdiction. | | | In this order. | | | | | | - If none of these, then | | | solution is article 4 para 1, | | | Ds domicile. | | | | | | **Art 6** | | | | | | 1.   If the defendant is not | | | domiciled in a Member State, the | | | jurisdiction of the courts of | | | each Member State shall, subject | | | to Article 18(1), Article 21(2) | | | and Articles 24 and 25, be | | | determined by the law of that | | | Member State. | | | | | | 2.   As against such a defendant, | | | any person domiciled in a Member | | | State may, whatever his | | | nationality, avail himself in | | | that Member State of the rules of | | | jurisdiction there in force, and | | | in particular those of which the | | | Member States are to notify the | | | Commission pursuant to point (a) | | | of Article 76(1), in the same way | | | as nationals of that Member | | | State. | | | | | | Brussels 1 is general rule but | | | there is a subjective requirement | | | in order to apply the regulation, | | | the D must be domiciled in a | | | member state -- It is a | | | pre-requisite of the application | | | of the regulation | | | | | | In order to apply you need to | | | check whether or not case is in | | | scope of application, then to | | | check D is domicile in MS, also | | | remember this general rule has | | | some exceptions which we will | | | come on to | | | | | | Brussels 1 legislation prevails | | | over national legislation -- when | | | assessing conflicts | | | | | | Most important exception: | | | exclusive grounds of | | | jurisdictions, where it is for | | | the regulation itself to | | | ascertain the competence of a | | | certain member state regardless | | | of defendants domicile | | | | | | 1^st^ consequence -- we aren't | | | applying the general rule to | | | determine competence | | | | | | 2^nd^ -- we don't apply | | | defendants domicile to see if | | | brussels 1 is applicable -- in | | | this scenario brussels 1 is | | | applicable INSPITE of whether D | | | has his domicile in a MS | | | | | | Brussels I podcast episode: | | | | | |   | | | | | | Did you know that the Brussels I | | | Regulation is a cornerstone of EU | | | private international law? It | | | defines which court has | | | jurisdiction when disputes | | | involve parties from different EU | | | countries. | | | | | |   | | | | | | That\'s an intriguing point. So, | | | how does this regulation actually | | | determine jurisdiction? What are | | | the rules involved? | | | | | |   | | | | | | Essentially, it establishes a | | | framework based on the | | | defendant\'s domicile, with some | | | exceptions for specific | | | situations. We\'ll delve into the | | | details of how these rules work | | | and some important exceptions, | | | like exclusive jurisdiction and | | | prorogation agreements. | | | | | |   | | | | | | So, let\'s dive into the heart of | | | this regulation. You mentioned | | | that it defines which court is | | | the right court to hear a case | | | involving parties from different | | | EU countries. Can you elaborate | | | on how it actually works? | | | | | |   | | | | | | Absolutely! The Brussels I | | | Regulation focuses on the | | | defendant\'s domicile as the | | | primary determining factor for | | | jurisdiction. This means, | | | generally, a person can be sued | | | in the country where they live. | | | Got it? | | | | | |   | | | | | | Yeah, makes sense. So, if someone | | | lives in Spain and they\'re being | | | sued by someone from Germany, | | | would the case have to be heard | | | in Spain? | | | | | |   | | | | | | Exactly! That\'s the general | | | rule, but remember, there are | | | exceptions. The regulation has | | | specific provisions for cases | | | like real estate disputes, where | | | the court with jurisdiction is | | | the one where the property is | | | located. | | | | | |   | | | | | | Interesting. So, in that case, | | | even though the defendant lives | | | in Spain, the case could be heard | | | in the country where the property | | | is located. Are these exceptions | | | often used? | | | | | |   | | | | | | They are! These exceptions are | | | crucial, as they can sometimes | | | override the general rule of | | | defendant\'s domicile. The | | | regulation aims to ensure that | | | cases are heard in the most | | | appropriate court, tailored to | | | the specific circumstances. | | | | | |   | | | | | | Hmm, okay. So, this regulation is | | | not just about sticking to a | | | strict rule, but about finding | | | the most appropriate court to | | | handle the case. | | | | | |   | | | | | | Precisely! It\'s about finding | | | the best forum for resolving that | | | particular dispute. It\'s a | | | delicate balance between the need | | | for clarity and flexibility. | | | | | |   | | | | | | You mentioned that this | | | regulation deals with \'civil and | | | commercial matters\'. Could you | | | explain what those are and | | | what\'s not included? | | | | | |   | | | | | | Good point. Brussels I applies to | | | private law cases, like | | | contracts, property disputes, and | | | torts. But it doesn\'t cover | | | matters like revenue, customs, | | | administrative proceedings, or | | | public law cases. | | | | | |   | | | | | | Got it. So, if there\'s a dispute | | | about taxes or a public law | | | issue, it wouldn\'t be governed | | | by this Regulation. What about | | | bankruptcy? You\'d mentioned that | | | has specific regulations. | | | | | |   | | | | | | Yes, that\'s right. Bankruptcy | | | proceedings, for example, are | | | covered by a separate | | | regulation. There needs to be a | | | specific regulation focused on | | | cross-border insolvency. | | | | | |   | | | | | | That makes sense, as bankruptcy | | | is a whole different area with | | | unique complexities for courts. | | | So, in a nutshell, this | | | regulation determines which court | | | is competent to hear cases | | | involving parties from different | | | EU countries when it comes to | | | civil and commercial matters. | | | | | |   | | | | | | That\'s a great summary! The | | | Brussels I Regulation aims to | | | ensure fairness and efficiency by | | | providing a clear framework for | | | determining jurisdiction in these | | | cases. | | | | | |   | | | | | | It\'s fascinating to see how this | | | EU regulation attempts to | | | harmonize the law across | | | different countries with | | | different legal systems. | +-----------------------------------+-----------------------------------+