Universal Jurisdiction and Third States in the Reform of the Brussels I Regulation
Author(s): Johannes Weber
Source: Rabels Zeitschrift für ausländisches und internationales Privatrecht / The Rabel
Journal of Comparative and International Private Law , Juli 2011, Bd. 75, H. 3 (Juli
2011), pp. 619-644
Published by: Mohr Siebeck GmbH & Co. KG
Stable URL: https://www.jstor.org/stable/41304246
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Universal Jurisdiction and Third States in the Reform
of the Brussels I Regulation
By Johannes Weber, Hamburg*
Contents
I. Introduction
II. EU Competence
Literature cited in
Owusu and after:
schriebene Grenzen
IPRax 2005, 224-23
Civil Jurisdiction R
ter Mankowski , B
Pataut, Internation
The External Dime
ed. by Malatesta / B
recht5 (2010).
Materials cited in abbreviated form : Convention of 27. 9. 1968 on Jurisdiction and the Enforcement
ofjudgments in Civil and Commercial Matters, O.J. 1972 L 299/32 (cited: Brussels
Convention); Council Regulation (EC) No. 44/2001 of 22.12. 2000 on jurisdiction and the
recognition and enforcement ofjudgments in civil and commercial matters (Brussels I), O.J.
2001 L 12/1 (cited: BR); GEDIP , Proposed Amendment of Regulation 44/2001 in Order to
Apply it to External Situations, IPRax 2009, 283-284 (cited: GEDIP , Proposed Amendment);
id., Proposition de modification du reglement 44/2001 en vue de son application aux
situations externes, Commentaire explicatif, <http://www.gedip-egpil.eu/documents/gedip-documents-30.htm>
(cited: GEDIP, Commentaire explicatif); Green Paper on the review
of Council Regulation (EC) No. 44/2001 on jurisdiction and the recognition and enforcement
ofjudgments in civil and commercial matters, COM(2009) 175 final of 21. 4. 2009
(cited: Green Paper); the replies to the Green Paper can be obtained from the website of the
European Commission at <http://ec.europa.eu/justice/news/consulting_public/news_con
sulting_0002_en.htm> (cited: Green Paper reply/replies); Proposal for a Regulation on jurisdiction
and the recognition and enforcement of judgments in civil and commercial matters,
COM(2010) 748 final of 14. 12. 2010 (cited: CP); Commission Staff Working Paper Impact
Assessment: Accompanying document to the Proposal for a Regulation of the European Parliament
and of the Council on jurisdiction and the recognition and enforcement ofjudgments
in civil and commercial matters of 14. 12. 2010, SEC(2010) 1547 final (cited: Impact Assessment);
Centre for Strategy & Evaluation Services, Data Collection and Impact Analysis - Certain
Aspects of a possible Revision of Council Regulation No. 44, Final Report of 17. 12. 2010
(cited: Data and Impact Report); Nuyts, Study on residual Jurisdiction, General Report of 3. 9.
RabelsZ Bd. 75 (2011) S. 619-644
© 2011 Mohr Siebeck - ISSN 0033-7250
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620 johannes weber RabelsZ
III. The Union's Interest in Universal Jurisdiction
1. Benefits for the internal market
2. Inconsistencies
3. Conclusion: Full harmonisation
IV. Extending Jurisdiction
1. Extending Art. 23(1) to non-EU parties
2. Special heads of jurisdiction and defendant's domicile
3. Deleting Arts. 9(2), 15(2) and 18(2)?
V Declining Jurisdiction
1. The puzzling status quo
2. Third State jurisdiction
a) Art. 34 CP - an exhaustive rule?
b) Third State jurisdiction agreements
c) Third State exclusive jurisdiction
d) Other grounds
3. Third State lis pendens
a) Difference in relati
b) Desirability of harm
and third State cases
c) Minor ambiguities
d) Necessary for the proper administration of justice
VI. Subsidiary Jurisdiction
1. Jurisdiction at the place of property
2. Forum necessitatis
VII. Task for th
Judgments
VIII. Conclusion
I. Introduction
In December 2010, the European Commission published a Proposal for a
reform of the Brussels I Regulation on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters (hereinafter:
BR).1 One of the cornerstones of the Proposal (hereinafter: CP) is the operation
of the Regulation in the international legal order, a subject which
has proven to be one of the most intricate issues in European international
civil procedure. In its Owusu decision, the European Court of Justice (here-
2007, <ec.europa.eu/civiljustice/news/docs/study_residual_jurisdiction_en.pdf>; Parliament
resolution on the implementation and review of Council Regulation (EC) No. 44/2001
on jurisdiction and the recognition and enforcement of judgments in civil and commercial
matters of 7. 9. 2010 (2009/2140(INI)), T7-0304/2010 (cited: Parliament Resolution).
1 For the context of the Proposal see Burkhard Hess, Die Reform der EuGVVO und die
Zukunft des Europaischen Zivilprozessrechts: IPRax 2011, 125-130; Tanja Domej, EuGVVO-Reform,
Die angekiindigte Revolution: ecolex 2011, 124-127.
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75 (2011) JURISDICTION AND THIRD STATES IN THE REFORM OF BR 621
inafter: ECJ) addressed that question from a central point of view and held
that the Regulation also applies to international disputes linked with the
territory of only one Member State by the defendant's domicile without any
further connections to other Member States, thereby not requiring an additional
intra-European element.2 The Regulation as it stands now does not,
however, capture all civil disputes involving third State connections:
Art. 4(1) BR provides that national law governs jurisdiction where the defendant
is domiciled in a non-Member State unless jurisdiction is vested in
the European courts pursuant to exclusive jurisdiction (Art. 22) or a jurisdiction
agreement (Art. 23). Thus, the Regulation in general does not contain
any rules for the assertion of jurisdiction against defendants resident in
third States. The Commission Proposal intends to close this gap by establishing
a uniform set of rules leaving no space for any national laws on jurisdiction.
It can be summarised as follows: By deleting Art. 4(1) BR it excludes
the application of national law. Instead, defendants domiciled in nonMember
States are subject to the grounds of special jurisdiction (Art. 4(2)
CP). Where these do not confer jurisdiction on a Member State court, two
grounds of subsidiary jurisdiction may come into play (Art. 25 and Art. 26
CP). Finally, the Proposal partially lays down rules for declining jurisdiction
in favour of non-Member State courts: Art. 34 CP authorises a European
court to grant a stay in favour of proceedings on the same cause of action
pending in a third State.
The following paper will give a first assessment of the Commission Proposal
as regards third State scenarios. After a brief discussion of the Union's
competence (II.) and the Union's interest (III.) to legislate in this field, it will
turn to the extension of special heads of jurisdiction to third State defendants
(IV.), the decline of jurisdiction in favour of third States (V.) and the
proposal for new subsidiary grounds of jurisdiction (VI.), before briefly concluding
on recognition and enforcement of third State judgments (VII.).
As a preliminary remark, it should be noted that the Proposal is only part
of a rapidly growing body of European Private International Law. The Brussels
Ilbis Regulation3, the Maintenance Regulation4, the Insolvency Regu-
2 ECJ 1.3. 2005 - Case C-281/02 (Owusu), E.C.R. 2005, 1-1383, paras. 24 seq.; 7.2.
2006, General Opinion 1/03, E.C.R. 2006, 1-1150, paras. 143 seq.; cf. ECJ 13. 7. 2000 - Case
C-412/98 ( Group Josi), E.C.R. 2000, 1-5925.
3 See Art. 7 Regulation (EC) No. 2201/2003 of 27. 11. 2003 concerning jurisdiction and
the recognition and enforcement of judgments in matrimonial matters and the matters of parental
responsibility, repealing Regulation (EC) No. 1347/2000, O.J. 2003 L 338/1: If the
defendant is resident in a third State, a national court may resort to its national law only where
no other court has jurisdiction pursuant to the Regulation, ECJ 29. 11. 2007 - Case C-68/07
(Sundelind Lopez), E.C.R. 2007, 1-10405, paras. 18 seq.
4 See Art. 3 and Recital 15 Regulation (EC) No. 4/2009 of 18. 12. 2008 on jurisdiction,
applicable law, recognition and enforcement of decisions and cooperation in matters relating
to maintenance obligations, O.J. 2009 L 7/1: The Regulation is applicable irrespective of the
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622 johannes weber RabelsZ
lation5, the Community Trade Mar
International Succession Regulation
beit not in a consistent manner. It w
instruments on an equal footing serve
as a guideline and promote am
law.
II. EU Competence
An objection constantly raised aga
cases is that they lack a sufficiently c
and thus lie outside the compete
ECJ, however, does not seem to sh
legal opinion on the Lugano Conven
the consolidation of the rules on jur
would benefit the internal market.9
defendant's domicile. Recourse to nation
Art. 3(c) and (d) for connected proceedings o
see Herbert Roth , Zum Bedeutungsverlust
in: Europaisierung des Rechts, ed. by id. (20
ary jurisdiction, Art. 7 a forum necessitatis s
5 Regulation (EC) No. 1346/2000 of 29. 5.
160/1. Article 3(1) EIR, restricts the scope to
a Member State, cf. Christoph Paulus, Europ
It is unclear whether the EIR is applicable w
proceedings is exclusively related to third
ternational Inc, [2003] EWHC 128.
6 Article 97(2), (3) Regulation (EC) No.
trade mark, O.J. 2009 L 78/1 also applies
Art. 82(2) and (3) of Council Regulation
designs, O.J. 2002 L 3/1.
7 Proposal for a Regulation on jurisdiction
of decisions and authentic instruments in m
Certificate of Succession, COM(2009) 154 f
pean residual jurisdiction.
8 Green Paper replies: Deutscher Richterb
Estonia 1, Andrew Dickinson para. 16; Oliver
European Community and its emerging Ar
38 (2001) 53-86 (76); Ulrich G. Schroeter, U
recht (2005) § 11 paras. 77 seq. These objecti
Jiirgen Basedow , Europaisches ZivilprozeBre
stands- und Vollstreckungsiibereinkommen
verfahrensrechts I (1982) Chap. II paras. 16
9 ECJ 1. 3. 2005, para. 34; 7. 2. 2006, para
universal rules Opinion of the European
O.J. 2010 C 255/48 (51); Jiirgen Basedow,
under the Treaty of Amsterdam: C.M.L. Re
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75 (2011) JURISDICTION AND THIRD STATES IN THE REFORM OF BR 623
the Union's competence have lost most of their force as a result of recent
changes in EU primary law. Article 81(2) TFEU10 provides a basis for all
measures with implications for the judicial cooperation between the Member
States and singles out the proper functioning of the internal market only
as an example.11 Therefore, the creation of a European area of freedom, security
and justice has become a goal of European policy which is independent
of the internal market.12 Where an action against a non-Member State
defendant is linked to several Member States, it is useful to coordinate the
exercise of jurisdiction of different European courts. Moreover, when it
comes to the coordination of parallel proceedings and the recognition and
enforcement of Member State judgments13 against third State defendants,14
the underlying rules on international jurisdiction serve as a correspondingly
acceptable basis for their recognition.
III. The Unions Interest in Universal Jurisdiction
Even if Art. 81(2) TFEU may thus grant legislative competence to the
Union, it still needs to be asked whether any action in this field is desirable.
A possible answer lies in potential benefits for the internal market and the
abolition of inconsistencies under the current regime.
1. Benefits for the internal market
The ECJ's finding that a uniform approach to international jurisdiction in
third State cases is apt to promote the internal market seems correct. First, it
is hardly possible to develop a watertight criterion for defining an intra-Union
dispute.15 Such a criterion would give rise to ambiguities impeding both
Staudinger, Art. 65 EGV im System der EG-Kompetenzen: European Legal Forum (EuLF)
2000/2001, 225-235 (229).
10 Treaty on the Functioning of the European Union, O.J. 2008 C 115/47.
11 Rudolf Geiger (- Kotzur ), Vertrag iiber die Europaische Union und Vertrag iiber die Arbeitsweise
der Europaischen Union5, EUV, AEUV (2010) Art. 81 AEUV para. 2; Wolfgang
Hau, Rahmenbedingungen einer Vergemeinschaftung des Internationalen Vertragsrechts, in:
Das Griinbuch zum Internationalen Vertragsrecht, ed. by Leible (2004) 13-24 (18). Contra
Ulrich G. Schroeter, Europaischer Verfassungsvertrag und Europaisches Privatrecht: ZEuP
2006, 513-551 (539).
12 This is underlined by Art. 3(2) and (3) TEU (O.J. 2008 L 115/13). Cf. ECJ 8. 11. 2005
- Case C-443/03 ( Leffler ), E.C.R. 2005, 1-9611, para. 45.
13 Art. 81 (2) (a) TFEU.
14 See ECJ 27. 6. 1991 - Case C-351/89 (Overseas Union), E.C.R. 1991, 1-3317, para. 14.
15 Heinze/Dutta 224; Pataut 128. An interesting proposal is presented by Marc Fallon, Approche
systemique de l'applicabilite dans l'espace de Bruxelles I et Rome I, in: Enforcement
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624 johannes weber RabelsZ
the functioning of the internal mark
only hold true for uncertainties as t
quired. It may become relevant also i
several Member States and third Stat
multiparty relations and apply differe
volved.17 Secondly, a uniform set of ru
sional can use a single set of standard
forum selection clause.18 Market p
against defendants from both Membe
the same rules across Europe. This wo
ing to lower litigation costs. Moreove
could rely on jurisdictional consumer
professional maintains a branch in a
tions for the internal market may r
within the Member States19 as some
in providing grounds of jurisdiction
than others. This may put some mark
have to incur higher transaction costs
diction agreement in order to confer j
of their domicile whereas others do
establish branches in other Member
relation to third States according to t
2. Inconsistencies
Not only the benefits for the internal market, but also the revision of inconsistencies
under the present law militates in favour of implementing a
universal concept of jurisdiction in the Brussels I Regulation. As a result of
Owusu , it stands firm that the Regulation already captures some third State
disputes. This leads to hardly comprehensible consequences: It seems odd
that the domicile of the defendant alone can constitute a sufficient link with
the territory of the EU, whereas the other connecting factors employed by
the special heads of jurisdiction in Sections 2 to 5 do not suffice for exercisof
International Contracts in the European Union, ed. by Meeusen/Pertegas/Straetmans (2004)
paras. 4-63 seq.
16 See ECI 1. 3. 2005 (supra n. 2) para. 34.
17 Basedow 703; Leible / Staudinger 229 (both supra n. 9).
18 See Leible /Staudinger (supra n. 9) 230.
19 Green Paper 3; Impact Assessment 20; Basedow (supra n. 8) para. 166; Burkhard Hess/
Thomas Pfeiffer/ Peter Schlosser (-Pfeiffer), Report on the Application of Regulation Brussels I in
the Member States (2007) para. 158.
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75 (2011) JURISDICTION AND THIRD STATES IN THE REFORM OF BR 625
ing jurisdiction20 even though they create a close link with a particular court
irrespective of the defendant's domicile.21 It is hard to explain why an insurance
policyholder, a consumer or an employee domiciled in a Member State
can benefit from the European jurisdiction22 favourable to them only in relation
to defendants from Member States and deserves less protection if they
enter into a transaction with a non-EU party.23 This issue is delicate with
regard to guaranteeing the application of mandatory secondary law.24 Furthermore,
it is particularly awkward that the application of the Regulation
may depend on the parties' procedural roles as either defendant or plaintiff.25
The Commission Proposal to abandon the restriction in Art. 4(1) and extend
the special heads of jurisdiction to third State defendants deserves support.26
As a consequence, it would also bring the Brussels Regulation in line
with the development in other areas of European law. Brussels Ilbis, the
Maintenance Regulation, the Regulations on the Community Trade Mark
and on Community Designs and the International Succession Regulation
Proposal apply also to defendants from non-Member States.27 Furthermore,
the Rome I, the Rome II and the Rome III Regulations all claim universal
application.28 Finally, the harmonisation of national rules on jurisdiction
would bring the idea of the duality principle already deeply rooted in the
20 CP Recital 17; Data and Impact Report 73; Green Paper replies: Bulgaria 4, House of
Lords Q 19 (Fentiman)', Magnus /Mankowski 8; Nuyts paras. 146, 154 and 164.
21 ECJ 6. 10. 1976 -Case 12/76 (Tessili), E.C.R. 1976, 1473, para. 13; 30. 11. 1976 - Case
21/76 (Bier), E.C.R. 1976, 1735, para. 11; P. Jenard, Report on the Convention on jurisdiction
and the enforcement of judgments in civil and commercial matters, O.J. 1979 L 59/1
(22).
22 Laid down by Art. 9(1), Art. 15(1) and Art. 19.
23 Hess § 5 para. 15; Magnus /Mankowski 7; Peter Mankowski , Die Briissel I-Verordnung vor
der Reform, in: Interdisziplinare Studien zur Komparatistik und zum Kollisionsrecht I (2010)
1-49 (40); Nuyts para. 161; Pataut 128. See with respect to consumer contracts ECJ 15. 9. 1994
- Case C-318/93 (Brenner), E.C.R. 1994, 1-4275, para. 16.
24 Impact Assessment 21. Cf. infra n. 106.
25 Karl Kreuzer, Zu Stand und Perspektiven des Europaischen Internationalen Privatrechts:
RabelsZ 70 (2006) 1-88 (71); Nuyts para. 155; Pataut 127.
26 GEDIP, Proposed Amendment 283 seq.; id., Commentaire explicatif para. 1; Heinrich
Nagel/Peter Gottwald, Internationales Zivilprozessrecht6 (2007) §3 para. 35; Hess §5 paras. 11,
19; Kreuzer (previous note) 72; Magnus /Mankowski 7; Krw^erpara. 8.11; Pataut 125 seq.; Green
Paper replies: Belgium 3, Bulgaria 4, Danmark 2, Finland 2, France 6, Deutscher Bundesrat
2, Greece 5, Italy 2, Latvia 3, Slovakia 2, Deutscher Anwaltverein 4, Deutscher Richterbund
2, Osterreichischer Rechtsanwaltskammertag 3.
27 See supra notes 3 to 7.
28 Art. 2 Regulation (EC) No. 593/2008 of 17. 6. 2008 on the law applicable to contractual
obligations (Rome I), O.J. 2008 L 177/6; Art. 3 Regulation (EC) No. 864/2007 of 11. 7.
2007 on the law applicable to non-contractual obligations (Rome II), O.J. 2007 L 199/40;
Art. 4 Council Regulation (EU) No. 1259/2010 of 20. 12. 2010 implementing enhanced cooperation
in the area of the law applicable to divorce and legal separation, O.J. 2010 L 343/10
(Rome III).
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626 johannes weber RabelsZ
Brussels Convention29 to a perfect end
ognition and enforcement of judgmen
for jurisdiction in general, this should
against non-Member State defendants.3
3. Conclusion: Full harmonisation
To ensure an identical level of judicial protection for economic actors in
all Member States, to provide them with a simple and certain set of rules and
to take the duality principle to its logical end, it would not be sufficient to
either simply extend the special grounds of jurisdiction and leave national
rules on jurisdiction (or at least exorbitant jurisdiction) in force31 or to refer
to national law where the Regulation does not provide a forum against a
third State defendant.32 Only a full harmonisation at the European level can
ensure that these goals will be achieved. It is thus to be welcomed that
Art. 4(2) CP and Recital 16 embark on this route by excluding any recourse
to national law. Such an approach lies also in the interest of third State defendants
as it mitigates the burdensome effects created by national, potentially
exorbitant grounds of jurisdiction (Art. 4(2) BR) and minimises the
recognition of judgments based on these grounds throughout Europe.33
More importantly, a uniform set of rules would make it easier for third State
residents to engage in business activities within Europe. Irrespective of
where their European business partners are seated they would be subject to
the same set of jurisdiction rules.34
IV. Extending Jurisdiction
While the extension of the Regulation to third State defendants deserves
full support, its implementation in the Commission Proposal needs to be
considered in more detail.
29 See Jenard (supra n. 21) 13.
30 Kreuzer (supra n. 25) 72 seq.
31 Green Paper reply: House of Lords para. 46, Q 16, 18 (Fentiman) .
32 Impact Assessment 26 seq. Yet, this is the approach in Art. 7(1) and Art. 14 Brussels Ilbis
Regulation.
33 Hess § 5 para. 17.
34 Data and Impact Report 81.
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75 (2011) JURISDICTION AND THIRD STATES IN THE REFORM OF BR 627
1. Extending Art. 23(1) to non-EU parties
The Commission has proposed to widen the scope of Art. 23 (1) by applying
it to parties none of whom is domiciled in a Member State. This is welcome.35
As seen, Art. 22 already applies to disputes between non-EU domiciliaries
provided that the relevant connecting factor (e.g. place of immovable
property) refers to the EU (Art. 4(1) BR). Consequently, the same
should apply to jurisdiction agreements. Disputes between non-EU parties
entering into transactions that are linked with the EU can raise difficult
questions concerning the allocation of jurisdiction within the EU. Therefore,
extending Art. 23 to third State defendants would provide third State
defendants a uniform regime for prorogation of European courts, thereby
fostering foreseeability for the parties. The English example illustrates that
it can benefit the local legal service industry if a neutral forum for international
parties is available. As far as their judicial resources are affected,36
Member States are free to absorb their use by means of special cost rules.
2. Special heads of jurisdiction and the defendant's domicile
With respect to the special heads of jurisdiction the Commission Proposal
removes all restrictions as to the domicile of the defendant, thereby
enabling plaintiffs to sue domiciliaries from third States in European courts
according to the same set of rules as defendants from the EU. As a result, a
defendant from a third State could be sued under Art. 5(1) at the place where
the contract is performed or under Art. 5(2) CP/Art. 5(3) BR where the
harmful event occurred. As argued above, this is to be applauded. Yet, the
Proposal makes one exception as far as jurisdiction for multiple defendants
(Art. 6(1)) is concerned. The relevant provision in Art. 6(1) CP provides that
" [a] person domiciled in a Member State may also be sued and is one of a
number of defendants, in the courts for the place where any one of them is
domiciled [...]", thereby excluding actions against non-EU defendants. It
follows that a third State defendant cannot be joined to proceedings taking
place in the Member State of another defendant's domicile unless another
special ground attributes jurisdiction to it. This exception is unfortunate37:
If Art. 6(1) aims to promote procedural efficiency and avoid inconsistent
judgments there is no reason not to apply it in relation to a non-EU defend-
35 Contra Green Paper replies: United Kingdom para. 10, Estonia 1, Andrew Dickinson
para. 16.
36 See See Gerhard Wagner, ProzeBvertrage (1998) 359.
37 See Hess/Pfeiffer/Schlosser (-Pfeiffer) (supra n. 19) para. 165; Nuyts para. 158; Pascal
Grolimund , Drittstaatenproblematik des europaischen Zivilverfahrensrechts (2000) para. 423;
Kruger para. 2.145; Green Paper reply: Czech 3.
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628 johannes weber RabelsZ
ant.38 The risk of irreconcilable jud
these defendants as another Membe
them on a different ground of juri
Regulation should only subject E
Art. 6(1) and treat them less favou
The situation would become even w
Proposal ousts national rules on j
thereby excluding a joinder which m
Therefore, Art. 6(1) CP should be p
grounds of jurisdiction enumerated
"domiciled in a Member State". As
geous consequences could be attenua
Art. 15(2) and Art. 18(2), i.e. by d
branch or an agency in a Member S
purpose of Art. 6(1). 40
A further shortcoming of Art. 6(1)
not allow joining an EU defendant
tuted against a third State defendan
sion is not engaged where jurisdicti
upon a special ground.42 Yet, the a
seem to carry stronger force. The
defendant43 from an unduly wide g
jurisdiction against the first defend
From the perspective of a defendan
whether the first defendant is a Me
deserves an equal level of protectio
rect to award additional defendants
European ones as making a distin
38 For Art. 6(1) BR see Jens Adolphsen, I
Rauscher /Alexander Fehre , Das Ende des for
sel I-VO: ZEuP 2006, 459-475 (473). Contr
372; OLG Hamburg 9. 7. 1962, IPRspr. 1992
petence et execution des jugements en Euro
Thomas Rauscher (-Leible), Europaisches
2011) Briissel I-VO Art. 6 para. 7 (cited: Raus
seq.
40 Considered but rejected by Alexander Layton/Hugh Mercer, European Civil Practice2 I
(2004) paras. 11.001 seq.
41 ECJ 27. 10. 1998 - Case C-51/97 (Reunion europeene), E.C.R. 1998, 1-6511, para. 44.
42 ECJ 27. 10. 1998 (previous note) para. 44.
43 ECJ 27. 9. 1988 - Case 189/87 (Kalfelis), E.C.R. 1988, 5565, paras. 7 seq.; 27. 10. 1998
(supra n. 41) para. 46.
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75 (2011) JURISDICTION AND THIRD STATES IN THE REFORM OF BR 629
against them.44 Again, it seems advisable to put branches or agencies of third
State defendants on an equal footing with Member State domiciliaries.
3. Deleting Arts. 9(2), 15(2) and 18(2)?
As a result of the Commission Proposal to extend the grounds of special
jurisdiction to third State residents, the jurisdiction at the place of branch in
Art. 5(5) will apply in disputes against third State defendants arising out of
the operation of a branch in a Member State. As a consequence, one may
consider deleting Art. 9(2), Art. 15(2) and Art. 18(2), applying, respectively,
in disputes against third State insurers, professionals and employers "arising
out of the operations of the branch, agency or establishment" in an EU State.
Yet, a minor difference emerges as the parties may deviate from Art. 5(5) by
means of a jurisdiction agreement whereas Arts. 13, 17 and 21 exclude such
a possibility. Thus, as Art. 9(2), Art. 15(2) and Art. 18(2) can preserve a sensible,
albeit narrow, scope, they should not be removed.
V. Declining Jurisdiction
While the Commission's effort to extend European jurisdiction to third
State defendants may be welcome, it is regrettable that the CP is mainly
concerned with broadening its international scope but pays less attention to
any limitation in favour of third State courts.
1. The puzzling status quo
In Owusu the ECJ decided that the provisions of the Regulation were
mandatory and barred a court from declining jurisdiction under national
law.45 The English courts were not allowed to deny jurisdiction under
Art. 2(1) BR and apply their doctrine of forum non conveniens .46 For three
scenarios in particular, that finding has caused great uncertainty as to whether
a court can ever refrain from exercising jurisdiction conferred upon it by
the Regulation: First, where the parties have entered into an exclusive jurisdiction
agreement in favour of a third State. Secondly, where the courts of a
third State have exclusive jurisdiction due to connecting factors comparable
to those in Art. 22 BR. Thirdly, where the same cause of action is pending
44 Rauscher (-Leible) (supra n. 39) Art. 6 para. 7; contra Rauscher/Fehre (supra n. 38) 473
n. 44.
45 ECJ 1. 3. 2005 (supra n. 2) paras. 37 seq.
46 See Spiliada Maritime Corp v. Cansulex Ltd, [1987] A.C. 460 (475 seq.).
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630 johannes weber RabelsZ
before a non-Member State court. It
not directly address these questions: A
(jurisdiction agreement) and Art. 27 (l
factors referring to the territory of
of possible solutions on how to fill in
suggests that Owusu has to be interpr
certainty prohibited a court from gr
any case.47 (ii) The opposite position
tion a direct reflective effect and endor
intermediary approach argues that na
ently mirrors the rules of the Regulatio
that the ECJ prefers the latter solution
a jurisdiction agreement in favour of
ing to national law.50
2. Third State jurisdiction
a) Art. 34 CP - an exhaustive rule?
It is unfortunate that the Commissio
questions on the reflective effect. It is
stay in favour of parallel proceedings
Given the fact that the Commission intentionally
desisted from proposing
ments and exclusive jurisdiction, it is
and 23 as having a direct reflective ef
consequences derive from the silence
Art. 34 CP as an exhaustive rule deter
where a derogation from jurisdiction
47 Green Paper reply: Hungary 3. For Art. 27
bles Ireland Limited, [2008] I.L.Pr. 816 (831 seq.)
Lewinsohn , [2010] 2 W.L.R. 839 (856 seq.) F
Rev. crit. d.i.p. 1992, 333. For Art. 22: Reinhold
Zivilverfahrensrecht3 (2010) Art. 22 EuGVO p
48 For Art. 22: Heinze/Dutta 227 seq. For Ar
49 For Art. 22: Grolimund (supra n. 37 ) para.
153 para 80. For Art. 23: Konkola Copper Mines
(H.C.); Albert Venn Dicey /Lawrence Collins
Adrian Briggs/Peter Rees, Civil Jurisdiction a
Johannes Weber, Rechtshangigkeit und Dr
2009, 620-625 (623 seq.).
50 ECJ 9. 11. 2000 - Case C-387/98 (Coreck M
ECJ 7. 2. 2006 (supra n. 2) paras. 143 seq.
51 Green Paper 4.
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75 (2011) JURISDICTION AND THIRD STATES IN THE REFORM OF BR 631
entail that there would be no power to give effect to a jurisdiction agreement
in favour of a non-Member State unless it is party to a multilateral
instrument such as the Hague Convention on Choice of Court Agreements
(HCCA).52 It would break with fundamental principles of private law and
cause tremendous uncertainty if a choice of court agreement could no longer
be enforced if it provides for jurisdiction for non-EU courts. Thus, it
cannot be assumed that the Commission Proposal, which aims to strengthen
jurisdiction agreements in general (Recital 19), would defy a private consensus
and rigorously assert jurisdiction. One may be inclined to assume that
Recitals 16 and 17 point to the contrary. But the converse is probably true.
Recital 16, providing that "there should no longer be any referral to national
law" is presumably intended to generally refer to Art. 4(2) CP on asserting
jurisdiction over third State defendants. Recital 17, which maintains
that the Regulation "establish [es] [...] a complete set of rules on international
jurisdiction of the courts in the Member States ", could also be interpreted
as referring only to the assertion of jurisdiction and not its decline in
favour of third States where this would consistently reflect the Brussels I
criteria. Still, for the sake of clarification it seems highly recommendable to
amend these recitals by at least adding a new sentence to Recital 17:
"The Regulation shall not prejudice the application of national law as far as nonMember
State's exclusive jurisdiction and exclusive jurisdiction agreements in favour
of a non-Member State are concerned".
b) Third State jurisdiction agreements
As a result of these considerations, national law will continue to govern
third State jurisdiction agreements. Even if this may be a workable solution
which mirrors the present state of the law, it stands in stark contrast with the
goal of creating legal certainty for the benefit of the internal market through
a harmonised set of rules. Furthermore, it is difficult to determine precisely
to which extent a recourse to national law is allowed and where discretionary
considerations contravene the principle of legal certainty.53 Therefore, it
could be advisable to supplement Art. 23 CP with a new paragraph along the
lines of Art. 6 HCCA which also features the requirements of Art. 23(1) CP.
Thus, a Member State should be compelled to give effect to a third State
jurisdiction agreement if the requirements of Art. 23(1) are met unless (i) the
agreement is null and void under the law of the prorogated state (including
its conflict of laws regime in order to ensure that the third State court will
accept jurisdiction), (ii) the party lacked the capacity to conclude the agree-
52 Concluded 30 June 2005 <www.hcch.net>. The Convention was signed by the EU on
1 April 2009, O.J. 2009 L 133/1.
53 Green Paper reply: Greece 5; Weber (supra n. 49) 624.
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632 johannes weber RabelsZ
ment under the law of the state of th
rules)54, (iii) the conditions of Art. 26(a
sen court has decided not to hear the c
trary to what is proposed by Art. 32(2)
clusive jurisdiction for determining th
ment in favour of third States should no
This is not only because in relation to t
does not apply, but also because the HC
tion agreement by both the courts cho
more important as a third State court m
c) Third State exclusive jurisdiction
Whereas the need for respecting jurisd
might be different as far as the exclu
stake. It has been argued that the reflec
sonable because it is not clear whether
tion. As a result, negative competence c
the fact that the third State will typic
excluded if the Regulation is suppleme
Art. 26 CP.58 It simply does not make s
third State itself claiming exclusive jur
the judgment and this will render a ju
worthless. Of course, it is up to the pla
risk.59 The defendant, however, would
duplicity of proceedings. In addition, g
third States would enhance procedural
court is the clearly more appropriate f
other words: The reflective effect amoun
State proceedings as being more adeq
forum non conveniens , which, however
not merely for courtesy but for proced
is better situated to hear the case, it sh
54 See Trevor Hartley /Masato Dogauchi, Masato
Court Agreements, Explanatory Report para. 1
Comparable to Art. 6(c) and (d) HCCA. This
where the judgment will not be recognisable in
56 Apparently tending to the other position GE
id., Commentaire explicatif para. 5.
57 Magnus /Mankowski 5; Mankowski (supra n.
4, Slovakia 2, Bar Council of England and Wale
58 Hess §5 para. 14; cf. Green Paper replies: C
w Magnus /Mankowski 6; Rauscher (-Mankowsk
replies: Latvia 4, University of Bern 8.
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75 (2011) JURISDICTION AND THIRD STATES IN THE REFORM OF BR 633
regards its jurisdiction as exclusive.60 Eventually, exercising jurisdiction
would become too cumbersome and complicated if the judge was expected
to carefully examine the jurisdiction regimes of third States.61
Finally, the idea of reflective effect has attracted substantial political support.62
That is an additional factor why the idea of extending Arts. 22 and 23
to third State scenarios should be seriously considered.
d) Other grounds
However, it is not advisable to apply the Regulation reflectively in all situations
where jurisdiction would necessarily be vested in a Member State
court. A particularly difficult case is consumer protection. According to the
CP, an EU professional may sue a third State consumer in a Member State
on the basis of Art. 5(1), a jurisdiction agreement (Art. 23) or Art. 25 CP
(location of assets) as the protective rules in Section 4 apply in general only
to consumers domiciled in Member States. If the law subjects third State
professionals to the strict rules on jurisdiction for the benefit of European
consumers, it is worth considering whether the EU legislator should deal
with the reverse scenario in a reciprocal manner and insert a new Article in
Section 4 stating that European courts shall stay or decline jurisdiction in
favour of the courts at the consumer's domicile where that consumer has
entered into a contract under circumstances analogous to Art. 15(1) BR. On
the other hand, it should not be forgotten that, while it is legitimate to protect
consumers as an aspect of European policy, it is less convincing to export
this policy choice to other countries. If the third State in which the
consumer resides recognises the Member State judgment, it is not the task of
European law to object to that policy. But the case does not seem totally
clear. In this context it is interesting to see that Rome I does not unilaterally
prefer EU domiciliaries and applies the conflict rules on consumer protection
(Art. 6 Rome I) indiscriminately to non-EU residents.63
60 Contra GEDIP, Proposed Amendment 284, Art. 22bis; id., Commentaire explicatif,
para. 4; Heinze/Dutta 228; Schack para. 359. Arguably, European rules on exclusive jurisdiction
can be far-reaching. Where a third State jurisdiction regime is more generous and does
not claim exclusive jurisdiction, there would be no reason to decline jurisdiction. Yet, for the
sake of simplicity it seems preferable to not examine third State jurisdiction rules.
61 Magnus / Mankowski 5; Mankowski (supra n. 23) 39.
62 Green Paper replies: Bulgaria 5, Deutscher Bundesrat 3, Italy 2, Latvia 4, Netherlands
5, Poland 3; Slovenia 4, Allen & Overy para. 20; Deutscher Richterbund 3, University of
Valencia 4. Parliament Resolution paras. 16 seq.; GEDIP , Proposed Amendment 284, Art. 22
bis; id., Commentaire explicatif para. 4; Kruger para. 8.14, Arts. A, F. For Art. 23. Green Paper
replies: Bar Council of England and Wales 3, Conseil des barreaux europeens (CCBE) 4.
Contra: Green Paper replies: Greece 6, Slovakia 2, Czech 3, Spain 2; Magnus /Mankowski 5;
Nuyts para. 183.
63 Francisco J. Garcimartin Alferez, The Rome I Regulation: Much ado about nothing?:
EuLF 2008, 1-61-79 (71).
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634 johannes weber RabelsZ
3. Third State lis pendens
Article 34 CP provides a welcome clar
tion of parallel proceedings pending be
State court. The Commission Proposal
Union lis pendens (Art. 27 BR/Art. 29
State particularities. A stay in favour
granted under Art. 34 CP if (i) the sam
third State court was seised first in tim
be handed down within reasonable tim
be capable of recognition and enforcem
ond seised and (v) a stay is necessary f
tice.
a) Difference in relation to intra-Uni
In contrast to intra-Union cases wher
avoid the risk of conflicting judgment
cases only if national law gives effect to
a European rule cannot do without a ref
account two parallel proceedings with
BR/Art. 29 CP aims at preventing the
sions which result in irreconcilable jud
Art. 34(3) BR/Art. 48(3) CP.64 Unlike
"same cause of action" and "irreconcila
interpretation65, European law so far d
tween a third State decision and a Mem
tion of "same cause of action" in Art
reference to the national law of the co
uniform outcomes.
b) Desirability of harmonisation despite differences between EU
and third State cases
But if Art. 34(1) CP cannot ensure uniformity in either the definition of
"same cause of action" or the recognition and enforcement of third State
judgments, one may doubt the usefulness of such a rule. Yet, the rules on lis
pendens amount to much more than an annex to rules on the recognition and
enforcement of judgments. This is illustrated by the fact that they do not
64 ECJ 8. 12. 1987 - Case 144/86 (Gubisch Maschinenfabrik), E.C.R. 1987, 4861, para. 8.
65 ECJ 8. 12. 1987 (previous note) para. 11; Mary-Rose McGuire, Verfahrenskoordination
und Verjahrungsunterbrechung im Europaischen Prozessrecht (2004) 81.
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75 (2011) JURISDICTION AND THIRD STATES IN THE REFORM OF BR 635
necessarily concur as to reasoning.66 Lis pendens is much more closely aligned
with the operation of jurisdiction rules than it may seem at first glance. The
rules determine which of two equally appropriate courts shall exercise jurisdiction.67
Focusing on English law, it does not come as a surprise that lis
pendens is inextricably linked to the doctrine of forum non conveniens and the
identification of the appropriate forum.68 Moreover, by incorporating the
priority principle the Regulation gives effect to the fundamental principle of
legal certainty69 and enables the parties to foresee which court will assume
jurisdiction.70 Even more importantly, if the matter were left to national law,
the basic idea behind the unification of jurisdiction would be seriously affected:
When proceedings were commenced in a third State, a court could
decline jurisdiction under its national law irrespective of whether proceedings
in the third State court were instituted first or second in time71 or related
to the same cause of action. This would considerably jeopardise the
concept that only uniform conditions and not divergent national rules are
capable of ensuring an equal access to justice and putting the parties into the
position to foresee with relative ease which court will have jurisdiction and
whether it will exercise it. There is a risk that courts will smuggle national
principles through the backdoor of lis pendens , claiming that a stay in favour
of third State proceedings was outside the Regulation.72 Yet, the Regulation
enshrines the principle that whenever its provisions confer jurisdiction upon
a court this court is as appropriate as any other court73. Thus, a discretionary
stay would raise serious concerns with respect to the principle of effet utile 74
as this would subvert legal certainty and the effectiveness of the uniform
application of Art. 2 to Art. 24 BR.75 Thus, a rule like Art. 34 CP is essential
for the operation of the Regulation in the international legal order.
66 Article 27(1) BR is based on the priority rule whereas Art. 34(3) BR is not, see Gaudemet-Tallon
(supra n. 38) para. 421. Also note the difference between Art. 19(2) and Art. 22(e)
Brussels Ilbis.
67 McGuire (supra n. 65) 36.
68 The Abidin Daver, [1984] A.C. (412, per Lord Diplock).
69 ECJ 9. 12. 2003 - Case C-116/02 (Gasser), E.C.R. 2003, 1-14693, para. 51.
70 ECJ 1. 3. 2005 (supra n. 2) para. 42.
71 Nuvts para. 185.
72 See JKN v.JCN, [2010] EWHC 843 (critical comment Pippa Rogerson , Forum Shopping
and Brussels Ilbis: IPRax 2010, 553-556); Konkola Copper Mines Pic v. Coromin, [2005] 2
Lloyd's Rep. 555 (573) (H.C.); Chris Hare , Forum non Conveniens in Europe: Game Over or
Time for 'Reflexion'?: J. Bus. L. 2006, 157-179 (176).
73 ECJ 4. 3. 1982 - Case 38/81 ( Effer ), ECR 1982, 825, para. 7.
74 ECI 10.2. 2009 -Case C-185/07 (West Tankers ). E.C.R. 2009. 1-663. oara. 24.
75 Weber (supra n. 49) 624.
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636 johannes weber RabelsZ
c) Minor ambiguities
Nevertheless, the Commission Propos
guities: The introductory words of Ar
They say that a stay in favour of thir
"notwithstanding Articles 3 to 7". This
out prejudice to the application of t
where they are engaged. Obviously, the
the mandatory character of these rule,
ing to these Articles that a court may
terpretation would make more sense
Arts. 8 to 20 a weaker party is (genera
not be deprived of proceedings before
Furthermore, the requirement that th
ed down within "reasonable time" needs further clarification. It would be
logical to apply Art. 29(2) CP a fortiori and principally exclude a stay if jurisdiction
in the third State court has not been or will not be established within
six months. Article 34 CP is designed to promote procedural efficiency by
embracing a trade-off between the risk of conflicting judgments and the
administration of justice. Therefore, the test of reasonableness in terms of
time should differ from that under Art. 26 CP (the forum necessitatis ), i.e.
from the minimum guaranteed by the right of access to justice77, and could
be guided by a combined approach of absolute (e.g. maximum of 3 years)
and relative terms comparing the expected length of proceedings of the
court seised with that of the third State court (e.g. more than twice as
long).
d) Necessary for the proper administration of justice
Article 34(1) (c) CP provides that a stay in favour of third State proceedings
may only be granted if it is "necessary for the proper administration of
justice". It is tempting to read Art. 34(l)(c) as a partial introduction of the
doctrine of forum non conveniens: European proceedings based on the Regulation
take preference unless (i) the third State proceedings can claim time-
76 A restriction in that sense has been proposed by Nuyts para. 185. In exception from that,
a stay should not be excluded if the stronger party, e.g. the professional, commenced proceedings
in a Member State and the weaker party asks for a stay, or in cases under Art. 25 CP where
the connections between the forum and the dispute are weak in any event.
77 Article 47 Charter of Fundamental Rights, O.J. 2000 C 364/1; Art. 6 European Convention
of Human Rights. See ECHR 29. 5. 1986, No. 9384/81 (Deumeland), Series A
No. 100, paras. 78-89; ECJ 17. 12. 1998 - Case C-185/95 P (Baustahlgewebe), E.C.R. 1998,
1-8417, paras. 29 seq. Cf. Christian Heinze, Europaisches Primarrecht und Zivilprozess: EuropaR
2008, 654-690 (667 seq.); Benedetta Ubertazzi, Intellectual Property Rights and Exclusive
(Subject-Matter) Jurisdiction: GRUR/Int 2011, 199-212 (205 seq.).
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75 (2011) JURISDICTION AND THIRD STATES IN THE REFORM OF BR 637
wise priority and (ii) the third State court is more appropriate to hear the
case according to the facts of the particular case. Yet, it would be odd if the
Regulation saddled itself with forum non conveniens although it is basically not
familiar with the concept. If forum non conveniens is not a ground for a stay
between Member States, it is difficult to see why it should be admitted in
relation to third States as there is no mechanism of judicial cooperation in
relation to them.78 "Proper administration of justice" can only be construed
with the help of principles that mirror preferences of the Regulation itself.
Therefore, granting a stay will principally comply with the requirement of
proper administration of justice where third State proceedings have been
commenced earlier and the judgment will be recognised, as this corresponds
to the mechanism in Art. 27(1) BR/29 (1) CP for intra-Union actions. But
the result may be different where the third State court lacks competence in
the light of European jurisdiction rules, particularly where jurisdiction is
exclusively vested in European courts pursuant to Arts. 22/23. The idea behind
such an approach would be a standardised method in assessing the appropriateness
of third State proceedings. But arguably, Art. 34(l)(c) CP can
be interpreted as referring to the ends of justice in the individual case, thereby
allowing discretionary considerations such as the availability of proof and
witnesses. But again, this would sharply contrast with the principle of foreseeability
of jurisdiction. At the least, it seems clear that only matters of judicial
administration come into consideration and issues of substantive law
such as shorter limitation periods justify a stay only if the third State judgment
would not be recognised for reasons of ordre public (Art. 34(1) (a) CP).
"Proper administration of justice" is a vague phrase which will serve as a
gateway for preserving national doctrines and will be very difficult to interpret
in a uniform manner. It should therefore be deleted but could be replaced
by a rule that would reflect the European jurisdictional principles and
enforce these principles on the level of lis pendens. A stay would only be allowed
if "the third State court is competent pursuant to the rules on jurisdiction
in Section 1 to 8."
VI. Subsidiary Jurisdiction
It is the objective of the Commission Proposal to transform the Brussels I
Regulation into an instrument of full harmonisation. Because third State
defendants do not have a place of general jurisdiction in the EU, subsidiary
jurisdiction rules are needed if gaps in the access to justice are to be avoid-
78 Notably, Art. 15(1) Brussels Ilbis and Art. 5(1) Succession Proposal permit a referral
under forum conveniens considerations only to another Member State court.
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638 johannes weber RabelsZ
ed.79 It holds true that Member States
connecting factors in their rules on su
monisation cannot bring down these d
denominator,80 it is for the sake of cl
CP includes provisions on subsidiary j
jurisdiction pursues a bifurcated appr
place of the defendant's property (1.) an
1. Jurisdiction at the place of p
According to Art. 25 CP, a defendan
sued in the EU state where property
provided that (i) no other European co
of jurisdiction, (ii) the value of the p
value of the claim and (iii) the dispute
State of the court seised. One may cr
tion should not content itself with pro
and refrain from laying down an exor
cording to the European rules there
dispute and any forum in the EU, but
hear the case, it seems consistent that
tence only in the case of a negative co
view, the Netherlands have abolished e
tional law.82 But a caveat has to be made: The world is not an ideal one and
this holds also true when it comes to access to justice. In the interest of an
efficient enforcement of rights, European law should provide an additional
ground for jurisdiction in cases where the claimant cannot demonstrate that
his case meets the high threshold of the forum necessitatis (Art. 26 CP). Moreover,
a forum necessitatis has to rely on vague criteria and will be difficult to
apply with sufficient legal certainty. It is therefore preferable to create an
additional ground of jurisdiction in relation to third State defendants using
a more precise connecting factor.
National legal systems employ different policies as regards the assertion of
jurisdiction over non-Member State defendants. According to French law
the citizenship of the claimant or defendant as such provides a sufficient
79 Nuyts paras. 145, 150, 168; Impact Assessment 24.
80 Data and Impact Report 74: Magnus /Mankowski 9: Nuvts para. 174.
81 See GEDIP, Proposed Amendment 284, Art. 24bis; id., Commentaire explicatif para. 7;
Green Paper replies: Latvia 3, Slovenia 4.
82 Antonius van Mierlo /C.J.J. C. van Nispen/M. V. Polak (- Polak ), Burgerlijke Rechtsvordering3
(2008) Boek 1, Titel 1, Afd. Inl. Opm. para. 8. For Belgium see Nuyts para. 83.
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75 (2011) JURISDICTION AND THIRD STATES IN THE REFORM OF BR 639
ground for jurisdiction.83 Similarly, it would be possible to assume jurisdiction
based on the domicile or the centre of main interests of the claimant.84
These criteria are easy to handle. Yet, a connecting factor that is exclusively
claimant-oriented completely fails to take into account the interests of the
defendant and can produce harsh results, especially because rights can be
assigned to any person domiciled in any state.85 Alternatively, European law
could rely on a defendant-orientated "minimum contacts doctrine" as developed
by US courts86 or follow the English model based on the defendant's
presence.87 But these rules cannot be viewed in isolation from the doctrine
of forum non conveniens which serves as an additional check to control exorbitant
results. Consequently, it would be advisable to incorporate them into
European law only as a package. Additionally, jurisdiction founded on the
presence of the defendant is not helpful if the defendant does not have assets
in the territory of the EU since the (potential) enforcement of the judgment
would then be unclear.
Combining models from several European legal systems,88 the Commission
proposes to introduce jurisdiction on the basis of assets (Art. 25 CP).
Unlike Art. 5(3) CP, it is not limited to actions specifically connected with
the located property and serves as a general ground for jurisdiction. Therefore,
Art. 25 CP might be considered to be harassing third State defendants
by means of an unduly exorbitant ground of jurisdiction. To meet these
concerns, the Commission has decided to soften the rigorous consequences
of a forum of assets with two limiting requirements: First, jurisdiction is
only amenable if the value of the property is not disproportionate to the
value of the claim (Art. 25(a) CP). This is borrowed from Austrian law,89
where that condition is met if the value of property amounts to roughly 20%
of the value of the claim.90 Thus, an umbrella forgotten in a hotel room
would not suffice to institute proceedings in the amount of a million Euros.
Second, along the lines of German and Austrian case law91, Art. 25(b) CP
requires further that the dispute has a sufficient connection with the Member
State of the court seised. It is obvious that such a vague formula cannot
83 Arts. 14 and 15 Code Civil.
84 Green Paper reply: France 7; cf. Art. 28(2), (3), (5) Latvian Code of Civil Procedure.
85 Schack para. 368.
8 Green Paper reply: Greece 5, see International Shoe Co. v. Washington , 326 U.S. 310
(1945).
87 See Dicey /Collins (supra n. 49) para. 11R-096.
88 Germany: §23 Zivilprozessordnung; Austria: § 99 Jurisdiktionsnormen (JN), Czech:
Art. 86(2) and Art. 88 (1) obcansky soudni rad; Denmark: § 248 (2) Retsplejelov; Finland: Ch.
10, s. 18(2) Oikeudenkaymiskaari; Poland: Art. 1103(2) Kodeks post^powania cywilnego;
Sweden: Ch. 10, s. 3 Rattegangsbalk.
89 §99 (1) S.2JN.
90 OGH 6.6. 1991, IPRax 1992, 164 (165).
91 BGH 2.7. 1991, BGHZ 115, 90 (94); OGH 29. 10. 1992, JB1. 1993, 666 (668).
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640 johannes weber RabelsZ
guarantee legal certainty92, particu
tion required is unlikely to be cons
all Member States. A broad formula will invite national courts to fall back
to their national principles on exorbitant jurisdiction. One conceivable remedy
would be to outline more precisely a coherent policy as to the quality of
"sufficient connection" in the Recitals of the Regulation instead of leaving
the ECJ with that task as it could take decades until the court will have singled
out the relevant criteria. These factors may include the claimant's domicile93
or citizenship94; the governing law95 and, if so, its complexity96; doing
business in the state even if the dispute has not arisen out of business itself97;
the availability of proof and witnesses98; the expertise of the court in related
disputes99; connected cases pending between the same or different parties100;
and certain aspects regarding the subject matter of the jurisdiction such as a
breach of contract or the place where the contract was made.101 Moreover, it
should be clarified whether one factor suffices or has only to be considered
when weighing up the parties' interests. In this context, it would be advisable
to specify what "sufficient" means. The Regulation addresses clearly
appropriate fora in Arts. 2 to 24; thus the threshold has to be probably lower
than under the forum non conveniens standard under English law.102
Nevertheless, even if the term "sufficient connection" was to be explained
in the Recitals of the Regulation, such a clarification could only cover just
a small part of a wide range of cases. It still would give rise to ambiguities,
thereby sitting at odds with the Regulation's principle of legal certainty. The
legislator should carefully consider whether it is wise to sacrifice the advantages
of a practicable forum of assets by burdening it with such a vague formula.
There is much to be said in favour of removing the criterion of "sufficient
connection" entirely. As this, however, would be to the detriment of
the defendant, it would be recommendable to strengthen his position by
tightening the disproportionality clause and require a ratio of one to one
between the value of the claim and the property.103
92 Friedrich Stein/Martin Jonas (-H. Roth), Zivilprozessordnung22 I (2003) §23 paras. 10
seq.
93 See supra n. 84; BGH 2. 7. 1991 (supra n. 91) 94.
94 See supra n.83; BGH 29. 4. 1992, NJW-RR 1993, 5.
95 Spiliada Maritime Corp v. Cansulex Ltd, [1987] A.C. 460, 481.
96 Nirna Sari v. Deves Insurance Public Co Ltd (The Prestrioka), [2002] EWCA (Civ) 1132
para. 73.
97 See Saab v. Saudi American Bank, [1999] 1 W.L.R. 1861 (C.A.).
98 Spiliada Maritime Corp v. Cansulex Ltd, [1987] A.C. 460 (478).
"Cambridgeshire" factor, see Spiliada Maritime Corp v. Cansulex Ltd (previous note) 484
seq.
100 See Donohuew. Armco Inc, [2002] 1 Lloyd's Rep. 425 (H.L.).
101 See CPR (UK) PD 6B 3.1.6. and 7.; cf. BGH 22. 10. 1996, IPRax 1997, 257.
102 CPR (UK) 6.37.3; Dicey/Collins (supra n. 49) para. 11-149.
103 Thomas Pfeiffer, Internationale Zustandigkeit und prozessuale Gerechtigkeit (1995) 235
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75 (2011) JURISDICTION AND THIRD STATES IN THE REFORM OF BR 641
2. Forum necessitatis
The introduction of a forum necessitatis (Art. 26 CP) guarantees a right of
access to justice and is indispensable in an instrument of full harmonisation.
Even if a forum necessitatis has to be couched in broad terms, an autonomous
rule at the European level appears to be the lesser evil compared to leaving
negative competence conflicts to the fragmented and equally uncertain national
provisions. Article 26 CP will probably be only of little practical importance,
but there might be two scenarios where it comes into play:
(1) Article 26 may apply if the parties have derogated from the jurisdiction
of a European Union court in favour of a third State forum and it subsequently
turns out that proceedings cannot be reasonably brought therein
(Art. 26(a) CP). Although as a result of the Commission Proposal the validity
of the jurisdiction agreement will be further determined by national law,
it is not for national law but for Art. 26 CP to resolve the negative competence
conflict which results from the derogative effect - stemming from the
jurisdiction agreement - recognised by the Regulation. Article 26 CP will
thus provide the parties with a forum necessitatis within the EU. But this will
not apply in all cases. Where the third State judgment will not be recognised
because the parties themselves have created the lacuna and should have
known better104, Art. 26 CP will not be engaged. An "exceptional basis"
would be missing.
Interestingly, Art. 26 CP does not apply in relation to defendants from
Member States (Art. 4(1) CP). This seems to stem from the internal logic of
the Regulation: An EU defendant can at least be taken to court in the state
of his domicile (Art. 3(1) CP). But that does not hold true if the Regulation
recognises the derogative effect of a third State jurisdiction agreement between
two EU parties. Instead of leaving the gap to be filled by Member
State law, Art. 26 CP should enshrine a uniform approach (at least by an
analogous extension). Thus, there is strong case for extending the personal
scope of Art. 26 CP.105 Yet, it should be noted such an extension would be
superfluous if the Commission adopted a rule on third State jurisdiction as
developed in this paper since a derogative effect would accordingly be deseq.;
Kropholler, Internationale Zustandigkeit, in: Handbuch des Internationalen Zivilverfahrensrechts
(supra n. 8) Chap. Ill, para. 342. Yet, such a rule will aggravate the problem of the
proportionality clause where property is spread among various Member States. The claimant
will be forced to commence parallel partial actions. However, the first action will trigger a
stay under Art. 27(1) BR/29(1) CP if the split claims rely on "the same cause of action". Possible
solutions would be to allow parallel proceedings and restrict recognition and enforcement
to the territory of the seised court, (Schack para. 371), to focus on the value of the property
in the EU in total or to permit proceedings where the centre of the property is located.
104 E.g. the judgment of a third State will not be recognised for lack of reciprocity (this is
a ground for non-recognition in at least some Member States).
105 Domej (supra n. 1) 126.
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642 johannes weber RabelsZ
nied where the conditions of Art. 26
noted that the forum necessitatis shou
pean court has jurisdiction under
should not be extended to situations
ber State court would take unreasonab
Regulation's principle of mutual trust
Member States.
(2) A second field where Art. 26 may become potentially important is the
enforcement of mandatory EU law, particularly consumer law.106 In consumer
transactions, applicable law and jurisdiction will concur in most cases
(Art. 6 Rome I; Art. 15 BR). However, forum and ius may diverge in so far
as the rules on overriding mandatory provisions in the consumer directives
(Art. 23 Rome I) exceed the frame of Art. 15 BR/Art. 6 Rome I.107 These
rules could be undermined if the Brussels I Regulation did not provide a
special head of jurisdiction vis-a-vis a non-EU defendant.108 The same problem
may arise in relation to mandatory rights under the Commercial Agents
Directive109. It would go too far if the attempt was made to derive a forum
legis from the EU conflict rules. The policy behind jurisdiction pursues an
autonomous approach relying on principles different from those in the conflict
of laws.110 A better place to accommodate these cases would be Art. 26(b)
CP. This would guarantee a uniform approach towards mandatory law and
prevent an unnecessarily complicated fragmentation of the European rules
on jurisdiction by additional fora legum in the conflict rules. It is only where
the recognition of the third State judgment would amount to a violation of
the ordre public that the forum necessitatis should step in. Yet, the mere fact that
the third State court does not apply European law will probably not trigger
the ordre public exception; it should rather depend on a comparison of the
expected result of the third State judgment with the substantive principles of
fairness effected by mandatory EU law.111
106 See Impact Assessment 21.
107 See Eva-Maria Kieninger, Der grenziiberschreitende Verbrauchervertrag zwischen
Richtlinienkollisionsrecht und Rom I-Verordnung, in: Die richtige Ordnung, FS Kropholler
(2008) 499-515 (504).
108 E.g. because the place of performance is outside the EU, has been otherwise specified
(Art. 5(1) BR or a third state jurisdiction agreement (outside the scope of Art. 17 BR) has been
made.
109 Council Directive 86/653/EEC of 18. 12. 1986 on the coordination of the laws of the
Member States relating to self-employed commercial agents, O.J. 1986 L 382/17. ECJ 9. 11.
2000 - Case C-381/98 (Ingmar), E.C.R. 2001, 1-9305. It is open to question, whether
Art. 3(4) Rome I has implicitly overruled Ingmar, see Johannes Hoffmann, Art. 3 Abs. 4 Rom
I-VO, Das Ende des europaischen Quellenpluralismus im europaischen internationalen Vertragsrecht?:
EWS 2009, 254-261 (260).
110 See Pfeiffer (supra n. 103) 744 seq.
111 See OLG Miinchen 17. 5. 2006, IPRax 2007, 322 (324); Giesela Rtihl, Die Wirksamkeit
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75 (2011) JURISDICTION AND THIRD STATES IN THE REFORM OF BR 643
VII. Task for the Future: Recognition and Enforcement
of Third State Judgments
It is open to question whether the Proposal should go even further and
harmonise the rules on the recognition and enforcement of third State judgments.112
Although the time may currently not be ripe for taking such a bold
step, the argument carries some force. It will be inevitably necesarry for the
smooth operation of the Regulation in the future. As seen, the rules on third
State lis pendens are incomplete, thereby hampering the internal market as
long as they are not backed by a common set of rules on the recognition of
third State judgments. It would greatly benefit European market participants
if they could rely on uniform standards when they are parties to third State
proceedings as either claimants or defendants, allowing them to easily determine
whether the judgment will be enforced in any EU State. This is particularly
important with respect to parties who engage in cross-border business
or have their assets spread throughout several Member States. Moreover,
competing market participants may be put at a, respective, advantage or
disadvantage if it is easier or harder to have a third State judgment recognised.
Although the current Proposal does not tackle the problem of third
State judgments, it might bring about a harmonisation of the rules on recognition
and enforcement under national law through the backdoor as far as
the indirect competence of the third State court is concerned. When recognising
a non-Member State judgment, a national legal system may further
adhere to national rules. But this will no longer be an attractive solution
given the fact that the Member State court assumes its jurisdiction (direct
competence) under European law.113
VIII. Conclusion
The general thrust of the Commission Proposal deserves full support. It
implementation is, however, in need of improvement: The rule for jurisdic
tion on connected claims (Art. 6(1) CP) should be extended to defendan
from third States. It is of particular importance that the Regulation clarifi
von Gerichtsstands- und Schiedsvereinbarungen im Lichte der Ingmar-Entscheidung d
EuGH: IPRax 2007, 294-302 (301). Contra Cass. civ. 22. 10. 2008, Rev.crit.d. i.p. 2009, 69
112 Pro Green Paper replies: Deutscher Bundesrat 2, Italy 2, Latvia 5, Lithunia 2. A de
tailed proposal has been presented by GEDIP, Le reglement "Bruxelles I" et les decisions ju
diciaires rendues dans des Etats non membres de l'Union europeenne, IPRax 2011, 103-104
Contra CP 5; Green Paper replies: Czech 4, United Kingdom para. 16, Denmark 2, Finla
2, Netherlands 5, Slovenia 5, Spain 2.
113 Cf. Christoph Kern, Anerkennungsrechtliches Spiegelbildprinzip und europaisch
Zustandigkeit: Zeitschrift fur Zivilprozess 120 (2007) 31-71.
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644 johannes weber RabelsZ
the problem of its reflective effect. It
ropean rules for declining jurisdiction
diction and jurisdiction agreements. W
certainty, Art. 34(l)(c) CP ("necessary
be deleted. The same should be done
tion").
There can be no doubt that a multilateral instrument guaranteeing worldwide
recognition of Member State judgments is the optimum solution. But
it is welcome that the Commission opted for the second best solution, one
which guarantees a consistent approach at least in respect of judicial cooperation
within the EU.
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