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Jurisdiction Under Brussels I Regulation 1 Notes

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JURISDICTION UNDER BRUSSELS I REGULATION (PART 1)

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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

a. When Does BIR Apply?
1) Subject-Matter of Proceedings 'Civil and Commercial Matters'

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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 Bankruptcy

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For case to fall outside BIR, bankruptcy must form 'principal subject matter of proceedings'

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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

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Arbitration proceedings themselves fall outside scope of Regulation
? Marc Rich [1991] (ECJ)

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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]

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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]

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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]

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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) 2) injunctions against parties continuing arbitration once it has been decided an arbitration clause is invalid
- Van Uden Maritime [1998] (ECJ) 3) nor decisions of a court asked to appoint an arbitrator under an arbitration clause
- Marc Rich [1991] (ECJ) 2) Sufficient Connection to EU Regulation is engaged where matter is 'civil and commercial' and if either: i) D is Community-domiciled ii) D is not Community-domiciled, but either Art 22 or 23 apply. Article 4

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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

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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 Individuals

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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

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C is domiciled in UK only if: i) Resident in UK; and ii) Nature and circumstances of residence show C has substantial connection with UK

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Where C has been resident in UK for three months or more, C presumed to be domiciled in UK unless contrary is proven. Corporations Article 60

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