#10003 - Sem 3 4 Brussels I Regulation - Conflict of Laws

SEMINAR 3-4: BRUSSELS I REGULATION

GENERAL

1. Real Name: Council Regulation (EC) 44/2001

2. Came into force in England 1 March 2002 and applies to all proceedings issued on or after that date (Article 66)

3. Sometimes called Judgments Regulation

4. It replaced the Brussels Convention 1968 and some of the case law relates to this Convention which had different numbers and wording

5. The Lugano Convention 2007 (applies to countries like Iceland, Norway and Switzerland) materially same as Brussels I and has the same numbering

6. NEW REG: Council Regulation (EU) 1215/2012 this will affect proceedings commenced on or after 10 January 2015

7. Takes precedence over common law

8. Generally meant to apply where D domiciled in MS but doesn’t have to be so

9. Has direct effect in England

10. Does apply to Denmark and Croatia

11. NON-CONTRACTING STATES: in exam these will often be: US, Australia, Ruritania, Tropicana, Ghastlia or Utopia

12. ART 267 REF: National court or tribunal may refer questions relating to the interpretation of the Brussels Regulation to the ECJ by virtue of Article 267 TFEU (Treaty on the Functioning of the EU)

CHAPTERS

1. CHAPTER 1: Scope (Art 1)

2. CHAPTER 2: Jurisdiction (Articles 2-31)

3. CHAPTER 3: Recognition and Enforcement (Articles 32-56)

SERVICE OF PROCESS IN REGULATION CASES

1. Regulation confers jurisdiction on English courts, C may serve process outside of England as of right (pursuant to CPR r 6.33). He must certify his entitlement to do so (CPR r. 6.34)

SCHEDULE 4 CJJA 1982

1. Brussels I doesn’t address jurisdiction between constituent parts of the UK (England, Scotland and N. Ireland) which is governed by Schedule 4 CJJA 1982 (Civil Jurisdiction and Judgments Act 1982)

2. s. 16(3) CJJA 1982 provides that in determining the meaning or effect of the provisions of Sch 4, regard should be had to relevant ECJ principles and decisions in relation to Brussels Regulation and they should be given such weight as may be appropriate in the circumstances

3. ECJ has no jurisdiction to interpret provisions in Schedule 4 (Kleinwort Benson v Glasgow)

INTERPRETATION

interpretation not according to English construction

1. Autonomous Meanings

1. Main definitional terms accorded uniform autonomous meaning – so different from national law

2. So ‘contract’ and ‘tort’ for the purposes of Regulation are different from English domestic law definitions

3. Handte (ECR): A court with Regulation jurisdiction on the basis of the contract rule proceeded to determine the merits by using its private international law of tort

2. Primacy of domiciliary jurisdiction and restrictive exceptions to Article 2

1. Marinari (ECR): basic principle that D shall be sued in the courts of MS where he is domiciled and provision of the Regulation derogating from this rule will receive a restrictive construction

2. Marinari established this in relation to the Brussels Convention but the principle still underpins interpretation of the Reg as shown in recitals 10 and 11

3. Concern to avoid irreconcilable judgments

1. Gubisch (ECR): as Regulation seeks to make judgments obtained in one MS freely enforceable in other MS, rules which provide for the non-recognition of judgments will be given a restrictive construction, whereas those which prevent parallel litigation should be construed amply

4. Promote legal certainty

1. So litigants know where proceedings may or may not be brought, an interpretation which leans in favour of legal certainty will be favoured

2. This principle also means that interpretation of the Regulation will be as consistent with the Convention which preceded it wherever the text has been preserved from one to the other

3. Erich Gasser (ECR): MS courts are trusted to be of equal competence, so it’s impermissible to invite courts of one MS to conclude that courts of another erred in considering whether they have/had jurisdiction

4. Recital 11 says the rules of jurisdiction should be ‘highly predictable’

5. Wording considered in all official languages

6. Give effect to general principles and fundamental rights under EU Law

FOURTEEN QUESTIONS

1. ARTICLE 1: Domain of the Regulation

1. Applies to: ‘civil and commercial matters whatever the nature of the court of tribunal’

2. Article 1 also includes a list of things it doesn’t apply to (eg. arbitration)

3. If something doesn’t fall within the scope of Article 1 apply wholly common law rules (so doesn’t include rules on lis alibi pendens)

4. To decide whether it is civil/commercial it’s the claim that matters, nature of defence is irrelevant. Have to pay attention to specific legal obligation which founds the claim, or the nature of the rights which the proceedings in question serve to protect (Van Uden)

5. Ashurst v Pollard: English court held that the excluded component must be the principal component in the dispute for jurisdiction to be denied

6. It’s normally obvious whether Art 1 applies, but if not, civil/commercial has autonomous meaning

7. PUBLIC BODY:

1. Can’t be public body exercising its public powers

1. Ruffer (ECR): Proceedings fall outside of Art 1 where they involve a public body acting in the exercise of its public powers ie. action by council to recover cost of removing barge NOT civil/commercial, even though claim framed as a tort action.

2. But that doesn’t mean it can’t be by a public body

1. VKF (ECR): proceedings by consumer’s association (ie. public body) to prevent use of unfair contract terms in consumer contracts;

3. Autonomous Meaning

1. Sonntag (ECR): claim alleging breach of duties of public office by a German schoolteacher - even though not so seen in certain systems. The fact that the teacher was a public servant and thus liability governed by rules of public law didn’t mean this was an exercise of public powers

4. Test?

1. Civil/commercial includes claims made by or against public authorities where the obligations enforced are of a kind which may be assumed by/imposed on persons generally. SO

2. if only the state could enforce (ie assumed) the obligation = NOT within Art 1

3. If it could only be imposed upon the state = NOT within Art 1

5. Assumed By?

1. Land Berlin* (ECR):

• To decide whether public body is acting in exercise of public powers have to examine the basis of the claim and detailed rules governing the bringing of the action.

• FACTS: In this instance, this case fell within Article 1, as it included an action for recovery of an amount unduly paid by public body. The reason was that the national law which provided that the public body had to do this did not distinguish between a private person or State entity. This was a national scheme compensating victims of Nazi confiscation of property.

2. Frahuil (ECR): if the obligation enforced is one peculiar to public law the matter will NOT be civil or commercial. Although, this decision showed that the right of subrogation is founded on ordinary civil law, doesn’t matter that underlying liability may relate to a custom matter.

6. Civil Wrong = can be assumed by anyone

1. HMRC v Sunico (ECR): claim by a public body (ie. HMRC) for damages caused by tortious conspiracy to commit VAT fraud. Basically, the fraud in this case was a civil wrong, not a UK tax law. Anyone person can sue for civil wrong and thus it was an obligation which could be assumed by anyone

7. Imposed On?

1. Lechouritou* (ECR):

• claim arising from atrocity committed by German armed forced during wartime not civil/commercial, although framed as a tort action.

• Significantly, the obligation could only be imposed on the armed forces (ie. not a private individual)

8. ANY CLAIMANT:

1. Groupe Josi (ECR): jurisdictional rules can be relied on by any C, whoever they are and wherever they come from (including from outside the MS)

9. ENFORCEMENT:

   1. Realchemie (ECR): claim to collect fine imposed by court in intellectual property proceedings was civil/commercial

   2. Owens Bank (ECR): proceedings to enforce non-member state judgment are outside Article 1, including ancillary or incidental procedures from those proceedings

10. ARBITRATION:

1. Test

1. Marc Rich

1. this doesn’t just exclude arbitration proceedings, but also court-proceedings in which the subject-matter is arbitration.

2. Held: English proceedings, involving an integral part of the arbitration process were excluded, even though there was a preliminary issue about the validity of the arbitration agreement

2. The Wadi Sudr – test is whether essential nature of substantive dispute is within the Regulation

2. Enforcement

1. But where case concerns enforcement of judgments reached in breach of arbitration agreement there is uncertainty. On the one hand, the underlying subject matter may be civil/commercial so recognise it (Van Uden), but on the other hand, recognizing the judgment might mean MS contradicting its own law on arbitration so don’t recognise (Hoffman). Cases conflict:

2. Hoffman (ECR): Dutch court not bound to recognize German order for maintenance (a matter within the scope of the Regulation) as it would mean it had to contradict its own law on the marital status of the parties (a matter excluded from the Regulation). BUT

3. Van Uden (ECR): if a court in another MS has given judgment in a case, having rejected a jurisdictional defence based on an arbitration clause, its judgment is given in civil/commercial matter – National Navigation (EWCA) seemed to follow this approach

4. Briggs says that such cases are ‘at one and the same time both inside and outside the Regulation’ so essentially there is no right answer

2. ARTICLE 71: Does a particular convention apply?

1. Examples of such conventions include 1952 Arrest Convention

2. If it falls within these conventions, the English court has jurisdiction subject to questions 12...