PAN-EUROPEAN LITIGATION AFTER BREXIT: A RETURN OF THE ITALIAN TORPEDO?
Since January 2015, the so-called ‘Brussels Recast Regulation’ has allowed parties to litigation within the European Union to choose the courts that will resolve a dispute between them.
Brussels Recast is a relatively recent development to cross-border litigation within the EU. These new rules, together with existing rules requiring the mutual recognition and enforcement of judgments between courts of Member States, mean that litigants in Europe now have an effective and pragmatic system for resolving disputes.
This is a significant improvement on the rules in play before 2015. Council Regulation (EC) No 44/2001 provided that, where parties to proceedings were in different Member States, jurisdiction disputes would be determined by the court first seized.
The rule stated that the second court to issue in any race to hear proceedings relating to a particular dispute must stay its proceedings until the court that had issued first had determined whether it had jurisdiction, regardless of any contractual jurisdiction clause. The rationale for the rule was to prevent parallel proceedings, and to avoid the risk of possibly conflicting decisions. In practice, it often meant that there would be a race to court with each party seeking to issue proceedings, first in its own national court, or in another jurisdiction perceived to offer some other advantage.
Jan-Mar 2017 issue
Walker Morris LLP