The recast of the Brussels I Regulation, applicable from 2015, has several implications for international litigation practice, including the abolishment of enforcement order procedures, the emphasis on jurisdiction clauses and the extension of the scope of jurisdiction.
The Brussels I recast seeks to remedy several recurring problems that arise under the current regulations, and to improve access to associated courts in member states. The recast of the Regulation goes into effect on 10 January 2015, and has several far-reaching implications for international litigation.
Abolishment of enforcement order procedures
Currently, adherence to the enforcement order procedure is necessary for carrying out cross-border enforceability. With the recast of the Brussels I Regulation, judgments rendered in a member state are recognised and enforceable in other member states without the need to follow special procedures. The only requirement for enforceability is providing a copy of the judgment and a certificate of enforceability from the court of origin to the competent enforcement authority of the other member state. The party to whom the cross-border judgment is addressed is responsible for challenging the enforceability of the judgment.
Reinforcement of jurisdiction clause
From 10 January 2015, parties are free to enter into an exclusive and binding choice of jurisdiction. Under current regulations, it is possible to ignore the jurisdiction clause as initially agreed by parties and to start proceedings in another country. In this scenario, the jurisdiction clause has no effect until the other court declares that it lacks competence (lis pendens). By starting the proceedings in a country known for its slow decision-making regarding competence (such as Italy), the process can be seriously delayed. The purpose of the new Regulation is that strategic and abusive pre-emptive litigation, also known as the ‘Italian Torpedo’, will have no effect in the future when parties agree on a choice of forum. This will not apply to patent cases, so this change will not have an effect on the Italian Patent Torpedo.
Wider scope of application
The recast of the Brussels I Regulation has a wider scope of application and a somewhat expanded view of jurisdiction. For instance, it will be possible for parties outside the European Union to designate a court in a Brussels I member state as having exclusive competence. Furthermore, consumers and employees will be able to sue their contracting party, regardless of the latter’s domicile, in the court of a Brussels I member state.
