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Recognition And Enforcement

Brussels I Regulation (recast) (Regulation (EU) 1215/2012) (the “recast Regulation”) has come into force on 10 January 2015. The Regulation applies to legal proceedings instituted on or after 10 January 2015 (Article 66(1)).

Regulation (EC) 44/2001 (the “Former Regulation”) has been repealed (Article 80), save that it will continue to apply to judgments given in proceedings instituted before 10 January 2015 (Article 66(2)). While much of the wording of the Former Regulation remains the same, there are key changes in a number of areas, the most important of which are:

(1)  Addressing abusive litigation tactics and strengthening contractual choice of court agreements

The position until now was that the court first seised of proceedings must have determined whether it had jurisdiction over a dispute.

This applied even where those proceedings are brought in breach of a jurisdiction agreement in favour of the courts of another member state. This has resulted in parties issuing proceedings in courts other than those chosen by the parties with the aim of causing tactical delays and “torpedoing” the proceedings. The recast Regulation reverses this rule. If the court nominated by the parties in their jurisdiction agreement is seised of the dispute, that court can proceed to hear the case, despite pending proceedings in another court first seised. The court first seised will even be obliged to stay its proceedings (Article 31).

(2) Extending the scope of jurisdiction agreements  

Under the Former Regulation, for a jurisdiction agreement to be valid one of the parties had to be domiciled in a member state. This rule has been changed and the recast Regulation will now protect jurisdiction agreements between non-EU parties which confer jurisdiction on the courts of a member state (Article 25(1)).

(3) New lis pendens rules on parallel proceedings pending in courts outside the EU

The Recast Regulation provides member state courts with a limited discretion to stay proceedings, which involve the same cause of action and the same parties as proceedings in a third (non-EU) state, or where there are related proceedings in a third state. The proceedings in the third state must have been commenced first, and a number of other requirements must also be satisfied (Articles 33 and 34).

(4) Streamlining the process for enforcement of judgments across member states

Under the Former Regulation, to enforce a civil judgment obtained in one member state in another member state, a judgment creditor was required to obtain a declaration of enforceability (exequatur) from the enforcing member state court. The recast Regulation introduces a simplified mechanism for the recognition and enforcement of member state judgments in other member states, abolishing the exequatur. Now, a judgment creditor simply has to present a copy of the judgment and a standard form certificate and can then begin the enforcement process (Article 39). The recast Regulation does not affect the 2007 Lugano Convention (Article 73(1)). Non-EU contracting states to the Lugano Convention are Switzerland, Iceland and Norway. Denmark has recently confirmed it will adopt the recast Regulation following all other EU member states.

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