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Law Notes Conflict of Laws Notes

Jurisdiction Under Brussels I Regulation 1 Notes

Updated Jurisdiction Under Brussels I Regulation 1 Notes

Conflict of Laws Notes

Conflict of Laws

Approximately 333 pages

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  • Brussels I Regulation will govern grounds for exercising jurisdiction if:

  1. Regulation applies to subject matter of the dispute; and

  2. There is sufficient connection with the EU

  1. When Does BIR Apply?

  1. Subject-Matter of Proceedings

‘Civil and Commercial Matters’

  • Article 1: Regulation only applies to civil and commercial matters.

  • Exercise of public law powers by public authority fall outside scope of Regulation.

  • However if relationship between public authority and other party to case is governed solely by private law, is inside scope of BIR.

  • Case falls inside scope of regulation insofar as it does not involve an exercise of powers by State going beyond that existing under rules governing private relations

  • Preservatrice Fonciere TIARD SA v Netherlands [2003]

  • Even where a body is acting in exercise of public law powers, case still inside scope of Regulation if the subject-matter of proceedings is private.

  • Verein fur Konsumenteninformation v Henkel [2002]

Excluded Matters


  • For case to fall outside BIR, bankruptcy must form ‘principal subject matter of proceedings’

  • Thus even where dispute arises out of bankruptcy, may still fall under BIR.

  • e.g. where trustee in bankruptcy makes order for sale of property

  • Ashurst v Pollard [2001]


  • Arbitration proceedings themselves fall outside scope of Regulation

  • Marc Rich [1991] (ECJ)

  • However when determining whether court proceedings to do with arbitration fall within Regulation, test is whether essential nature of substantive dispute is within Regulation.

  • The Wadi Sudr [2010]

  • Thus judgment may fall in BIR if arbitration is preliminary to main issue of proceedings

  • hinted at in Marc Rich [1991] (ECJ)

  • The Wadi Sudr [2010]

  • ECJ had earlier held that applications for interim relief measures under (what is now) Art 31 Regulation where a valid arbitration clauses existed was not excluded from BIR

    • i.e. as for Art 31, the subject-matter of proceedings on merits is irrelevant

    • is relevant factor is the aim of interim measures sought

      • where measures are to protect C from financial loss, fall within Regulation

      • Van Uden [1998]

  • Regulation however does not apply to proceedings “in support” of arbitration:

  1. decisions on whether arbitration agreement is valid or not

  • Van Uden Maritime [1998] (ECJ)

  1. injunctions against parties continuing arbitration once it has been decided an arbitration clause is invalid

  • Van Uden Maritime [1998] (ECJ)

  1. nor decisions of a court asked to appoint an arbitrator under an arbitration clause

  • Marc Rich [1991] (ECJ)

  1. Sufficient Connection to EU

Regulation is engaged where matter is ‘civil and commercial’ and if either:

  1. D is Community-domiciled

  2. D is not Community-domiciled, but either Art 22 or 23 apply.

Article 4

  • If D is not domiciled in any Member State, jurisdiction falls to be determined by the national rules of relevant Member State.

  • unless Art 22/23 apply

  • Domicile of claimant is irrelevant to application of Brussels Regulation.

  • Thus can be jurisdiction under BIR even if C is domiciled in a third-State.

  • Group Josi Reinsurance [2000] (ECJ)

  1. Domicile


  • Article 59: a party’s domicile falls to be determined by national law.

  • i.e. if D claims he is domiciled in Member State A, law of Member State A must be applied to see if this is case.

  • even if claim is being heard in a different MS to one in which D claims domicile

  • Even if D resides in non-Member State, may still fall under BIR if he has ‘special business domicile’ in an MS (under that MS’s law)

  • Haji-Ioannu v Frangos [1999]

Civil Jurisdiction and Judgments Order 2001

Para 9, Schedule 1

  • C is domiciled in UK only if:

  1. Resident in UK; and

  2. Nature and circumstances of residence show C has substantial connection with UK

  • Where C has been resident in UK for three months or more, C presumed to be domiciled in UK unless contrary is proven.


Article 60

  • For purposes of Regulation, company or legal entity is domiciled at place in which it has its:

  1. statutory seat; or

  2. central administration; or

  3. principal place of business

  • For purposes of companies domiciled in UK, “statutory seat” means registered office/place of incorporation.

  • Principal place of business is place at centre of company’s operation

  • King v Crown Energy Trading AG [2003]

  • Thus not necessarily place in which most of company’s business is carried out

  • Rather it is place where company is controlled or managed

  • Ministry of Defence of Iran v FAZ Aviation [2007]

  • Thus under rules for domicile in BIR, is possible for individual or a company to be domiciled in more than one Member State

  • e.g. where central administration and principal place of business in different MSs.

  1. Special Jurisdiction

  • Where D is not domiciled in EU:

  1. case falls under Article 23 if C is EU-domiciled

  2. if both D and C are not EU domiciled

  • case only falls under BIR if Article 22 applies.

  • if Art 22 does not apply, jurisdiction allocated by Article 4

  1. Bases of Jurisdiction

  • Where shown that a case falls under BIR, bases of jurisdiction are:

  1. Special interest

  2. Consent of parties

  3. Submission

  4. Domicile

  5. Special jurisdiction

  6. Special Contracts

  • Are two ways in which priority of jurisdictional bases is allocated:

  1. Hierarchy

  • certain bases of jurisdiction are stated by Regulation to have priority over others

  1. Chronology

  • where no country has exclusive jurisdiction, country of courts first seised by claimant have jurisdiction

  1. Hierarchy

  1. Article 22 has priority

  • This clear from wording of Arts 23+24

  1. Article 24 (subsequent agreement) overrides Art 23 agreement

  2. Article 23 – an exclusive prior jurisdiction clause overrides general grounds.

  3. if none of these exist

  • Article 2, Article 5, Article 23 (if jurisdiction clause non-exclusive)

  1. Chronology

  • Where no grounds has priority, jurisdiction allocated on basis of chronology (see sup 2)


  1. Special interestArticle 22

  • Allows...

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