The new Brussels Regulation I bis is now applicable

26.01.2015

From January 1, 2015 on, the Regulation (EU) No 1215/2012, of the European Parliament and of the Council of 12 December, 2012, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I-bis from here on), must be applied, replacing the Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.  The goal of this new Regulation is to create, in order to better fundamental aspects such as recognition and enforcement of decisions, international jurisdiction, lis pendens.

The star novelty of the Brussels I Regulation’s reform is the abolition of exequatur. In order to implement a judgment in another Member State, it is currently required to receive a prior declaration of enforceability from a national Court.  With the new Regulation 1215/2012 (article 39) the exequatur is no longer necessary.  This is due to the fact that “a judgment given in a Member State which is enforceable in that Member State shall be enforceable in the other Member States without any declaration of enforceability being required”.  This implies that any judgment given by a State Member of the European Union will be recognised and enforced automatically.  The judgment will be treated as if it had been emitted by a Court from the State Member in question.

The modification of Brussels I Regulation maintains the mechanisms of refusal of recognition and enforcement, found in its article 45, which are, amongst others: a) if such recognition is manifestly contrary to public policy in the Member State addressed; b) when the judgment was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defense; c) if the judgment is irreconcilable with a judgment given between the same parties in the Member State addressed; or d) if the judgment conflicts with the stated by the Regulation in insurance, consumer, employee, or competition matter.

The Regulation 1215/2012 is aimed at facilitating the free circulation of judicial resolutions in the EU and better the access to justice.  To this end, aside from the abolition of exequatur, it also extends the scope of jurisdiction so as to result applicable to defendants not domiciled in a Member State.  To complete this objective, the Commission’s proposal suppressed from the Regulation the rule to refer to the national legislation when the defendant is not domiciled within the EU territory.   

While studying the international jurisdiction, aside from what we have just read, there haven’t been great modifications.  The new Regulation establishes that the rules of jurisdiction will be based on the domicile of the defendant, except in certain cases in which the subject of the case or the autonomy of the parties justifies the use of different criteria.  This is to prevent that a person can receive a lawsuit from a Court from a State member that could not have been predicted.

The new Regulation also modifies the legal regime on lis pendens between courts of the Member states.  Unlike the Regulation 44/2001, the article 33 of the Regulation 1215/2012 includes lis pendens between courts of the Member states as well as courts from third countries that were hearing the case previously. The court chosen by the parties will have preference over the time-based priority, regardless of where the domicile is found.

The regime incorporated by the article 33 is only applicable when the court of the State member has jurisdiction based on the articles 4 (defendant’s domicile as a general ground), 7, 8 or 9 (special jurisdiction).  This way, this regime does not apply when the court at hand has exclusive jurisdiction, when its jurisdiction is based on insurance, consumer or employment contracts, or when its jurisdiction is due to prorogation of jurisdiction.

A new exception was introduced in the new article 31 which gives preference to the court that is hearing the case due to a prorogation of jurisdiction agreement.  This addition intends to correct dysfunctions such as the rules on lis pendens of the Regulation 44/2001 that applied without exception the priority to the court where the first claim was placed. 

There have been little changes in arbitration.  There were proposals while drafting the Regulation to establish rules to better the coordination between arbitration and the judicial process. However, the final text did not include the mentioned rules.  The Regulation’s preamble reiterates that the Regulation is not applicable to arbitration, and clarifies that it does not affect the possibility for Member states – after reciving notice of an action towards a certain case submitted to arbitration – to declare lack of jurisdiction  or to examin the validity and efficiency of the arbitration agreement.  This Regulation will not affect the applicaation of the New York Convention on the recognition and reinforcement arbitral awards.

Written by: Athena Poysky

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