Revision of the European Regulation "Brussels I": what U.S. companies and lawyers should keep in mind.

• Author: Rouhette, Thomas

This article was originally published in the September 2011 International Committee Newsletter.

Regulation no. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ("Brussels I Regulation") is the cornerstone of the European legislation regarding cross-border litigation and judicial cooperation in the European Union. This Regulation succeeded to the Brussels Convention of 27 September 1968 on jurisdiction and enforcement of judgments in civil and commercial matters, which had progressively been ratified by all Member States joining the European Union.

Since its entry into force on 1st March 2002, nine and a half years ago, it is generally considered that the Brussels 1 Regulation has been successful in establishing common jurisdiction rules, as well as facilitating the recognition and enforcement of court decisions in other Member States in commercial and civil matters.

Nonetheless, the European Commission is contemplating bringing radical changes to the current version of the Regulation, as demonstrated by the Draft Proposal published on 14 December 2010. (2) This Draft Proposal follows the publication of several preliminary studies, among which is the report prepared by Professors Hess, Pfeiffer and Schlosser regarding the concrete application of the Brussels 1 Regulation. (3) The European Commission published at the same time as the Draft Proposal an Impact Assessment of the suggested amendments which is the result of a study by the Centre for Strategy and Evaluation Services. (4) Thus, the Draft Proposal is the result of several years of thinking as well as empirical data gathering as demonstrated by this relatively abundant legislative history.

Objectives of the Revision

According to the European Commission, the objectives of the changes presented in the Draft Proposal are three-fold: (1) lowering legal costs, diminishing procedural delays and improving legal certainty; (2) allowing a better access to justice and protecting weak parties; and (3) ensuring a better coordination of legal proceedings. More generally, this reform aims at taking into account in the revised Regulation the evolutions that the European Union has known since the enactment of the Brussels I Regulation at the beginning of the 2000's, in particular the development of the European single market.

Further, the Draft Proposal was also prepared to address the challenges that arose from cross-border litigation, within and outside the European Union, which the globalization rendered more frequent and more complicated. For example, some of the new provisions were designed to prevent some forum shopping strategies which purpose is to circumvent a choice-of-court or arbitration agreement.

Moreover, this Draft Proposal was conceived in an economic perspective: the European Commission mentions several times the current economic crisis and wishes that the Draft Proposal will "create the necessary legal environment for the European economy to recover" thanks to reduced litigation costs and improved legal certainty. (5)

Consequently, this revision concerns a high number of provisions of the existing Brussels I Regulation. Only a few points amounting to major modifications among those envisaged will be examined hereafter.

The Expansion of the Territorial Scope of the Jurisdiction Rules

At present, the territorial scope of most of the jurisdiction rules provided for by the Brussels I Regulation, subject to certain noteworthy exceptions, is limited to cases where the defendant is domiciled in a Member State. As a result, the international jurisdiction rules comprised in the domestic law of each Member State are applicable in these cases and may differ greatly from one Member State to another.

Such limitation that was inherited from the Brussels Convention of 27 September 1968 reflects still today the fact that the application of the Brussels I Regulation is perceived as a protection for the defendants against the so-called exorbitant jurisdiction rules that may be part of the domestic law of Member States. The European Commission defined these rules as "rules of jurisdiction in which the court seized does not possess--by international agreed standards--a...