Brexit: justice for families, individuals and businesses? Contents

Chapter 2: The Brussels I Regulation (recast)

Background

The development of the Brussels Regime

17.The Brussels I Regulation (recast) (and the two other Regulations that form the focus of this report) can be traced back to the original 1957 Treaty of Rome.26 In the Treaty, the founding six Member States of the European Economic Community (EEC) promised to “enter into negotiations with each other with a view to securing for the benefit of their nationals … the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals and of arbitration awards”

18.To that end, in September 1968 the (still) six EEC Member States agreed the Brussels Convention on jurisdiction and enforcement of judgments in civil and commercial matters (the Brussels Convention).27 It laid down detailed rules dealing with the circumstances under which the courts in the Member States might exercise jurisdiction and rules addressing specific civil and commercial legal areas including contract, tort and maintenance.28 Following the UK’s accession to the EEC and the adoption of the acquis, the Brussels Convention was given domestic effect in the UK by the Civil Jurisdiction and Judgments Act 1982, which came into force in January 1987.29

19.Some years later, in March 2002, as part of the EU’s efforts to create the AFSJ, the (then) 15 EU Member States, with the exception of Denmark (which subsequently negotiated separate arrangements30), agreed the Brussels I Regulation, which replaced the Brussels Convention. Some of the Brussels I’s shortcomings are discussed in Box 6; Denmark’s bespoke arrangements are discussed in Box 13. Then, in 2012, following a long period of consultation, further amendments were agreed as part of the negotiation of the current version of the Regulation: the Brussels I Regulation (recast) (see Boxes 2 and 3).31

British influence

20.We asked our witnesses what influence the United Kingdom had had on the development of these Regulations. Former Court of Appeal Judge, the Rt Hon Sir Richard Aikens, emphasised the British influence in shaping the content and evolution of this area of EU legislation. He said “there was a great deal of input [from British lawyers and judges] into the moulding of the BIR in particular, and the changes that were made” in 2012. While “ultimately it is a European Regulation and it emanates from Brussels … the final result owed a great deal to British input”.32

21.The Bar Council agreed with Sir Richard. Hugh Mercer QC told us that the “UK Law Societies’ joint Brussels office, the Bar Council’s Brussels Office and British parliamentarians and MEPs have been tremendously influential”. He added that “we have a very strong legal system, and we have been very influential in Brussels”.33 Professor Richard Fentiman, of Cambridge University, also recognised the British influence on these Regulations: “The United Kingdom has had a very considerable influence in shaping their form.”34

22.The Minister agreed: “We are amazing in the way we affect international affairs … we have been involved in improving arrangements around the world and in the EU.”35

23.We acknowledge and welcome the UK’s influence over the content of these three EU Regulations which are crucial to judicial cooperation in civil matters and reflect the UK’s influence and British legal culture. We urge the Government to keep as close to these rules as possible when negotiating their post-Brexit application.

What does the BIR do?

24.The BIR is built on the principle of mutual trust between Member States’ legal systems.36 It typically applies when a legal dispute has a cross-border or external element, and it sets out reciprocal rules on:

(1)Jurisdiction, namely which court in which Member State should hear a particular civil/commercial dispute; and

(2)Enforcement and recognition of judgments.

As Hugh Mercer QC explained: “Wherever you get people, businesses, products or goods crossing borders … [you need] rules that sort out cross-border situations”.37

25.Professor Jonathan Harris QC, of Serle Court, also emphasised the practical benefits of the BIR: “[The] only reason this exists is because it was considered to be complementary to free trade—you would not have a barrier to going out to provide your goods or services across Europe because you knew you would be able to recover debts”.38

Box 2: The Brussels I Regulation (recast): jurisdictional rules

In order to facilitate civil justice cooperation within the AFSJ and to avoid parallel legal proceedings (cases covering the same litigants and the same facts brought in two different Member States), the BIR sets out rules in order to determine in any civil based litigation the specific court with jurisdiction to hear the case. The primary rule is that a defendant must be sued in the courts of the State in which he or she is domiciled.39

Beyond the primary rule, the Regulation also contains rules of “special jurisdiction” across a broad range of civil law disputes allowing, in certain circumstances, individual defendants to be sued in certain other EU Member States, to which the dispute has a link. For example, in contractual disputes the defendant can be sued in the EU Member State in which the contract was performed;40 if it is a consumer dispute, then the consumer can choose to bring legal proceedings in the Member State where the consumer is domiciled, or where the supplier of the product is domiciled.41 A case study is given in Box 4

The Regulation includes similar rules across the full range of civil litigation: negligence (tort) related cases;42 insurance disputes;43 employment contracts;44 trust based disputes;45 and litigation relating to the salvage of cargo and/or freight.46 In limited exceptions, regardless of where the parties live, the Regulation stipulates where the case must be heard (defined in the Regulation as “exclusive jurisdiction”).47 These exceptions are as follows:

(1)cases involving rights to immovable property, or the tenancy of immovable property, must be heard in the jurisdiction where that property is situated (private tenancies of under six months may be heard in the EU country where both landlord and tenant live);48.

(2)disputes over the validity of a company’s constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or the validity of the decisions of their organs must be heard in the EU country in which the company “has its seat” according to private international law;49

(3)proceedings dealing with the validity of entries in public registers must be heard in the courts of the Member State in which the register is kept;50

(4)proceedings concerning the registration or validity of patents, trademarks, designs, or other similar rights required to be deposited or registered, must be heard in the courts of the Member State in which the deposit or registration has been applied for or has taken place;51 and,

(5)proceedings concerning the enforcement of judgments must be heard by the courts of the Member State in which the judgment has been given or is to be enforced.52

In order to avoid parallel legal proceedings (litigation in more than one Member State), courts not enjoying jurisdiction (as defined above) are required to stay proceedings and decline jurisdiction.53

The importance of the BIR

Jurisdiction

26.All our witnesses agreed that the BIR’s jurisdictional rules had established legal certainty and predictability. Sir Richard Aikens said the BIR maintained “a set of rules for deciding which courts in which country of the member states of the European Union will resolve civil and commercial disputes”. In his view, the Regulation “is very important [because] it is not just concerned with commercial cross-border disputes; it deals with all civil and commercial matters”.54

27.Hugh Mercer QC said that the “uniformity and certainty given to general civil litigation” by the BIR was “very important”.55 He stated that the Regulation “gives certainty to consumers, to employees, and to victims of car accidents … if you are knocked down in the street in Nicosia, you can bring your claim against the Cypriot insurer in English courts”. He concluded that the Regulation provided “certainty for the little guy”.56

28.Oliver Jones, of Brick Court Chambers, also emphasised the protection that the Regulation conferred on individuals: “One of the fundamental rationales of the current EU system is that it is there to protect people.” The BIR “protects them from parallel proceedings57 being launched against them in different member states [and] ensures that people who are sometimes in a vulnerable position … can be sued in the courts of their home member state”. The Regulation provided “a clear, codified set of rules that people can understand”. In his view, it had been “proven to work”.58

29.Oliver Jones also noted that, while “we think very much of big corporates, large commercial claims”, the Regulation “applies equally to very small claims, individual claims and small company claims … which could be for a very small amount of money”. He warned that anything that reduced the uniformity introduced by the Regulation would “impact on those people the most”.59

30.Professor Adrian Briggs QC (Hon), of Oxford University, emphasised the importance of the Regulation’s jurisdictional rules. The BIR “regulates jurisdiction far more often and far more significantly than it does enforcement of judgments”. In his view, the BIR’s importance lay in the protection it conferred on defendants in the other 27 EU Member States: it “protects them from the normal jurisdictional rule of the common law: that any person who is present within the territorial jurisdiction of the English court, or any company which carries on business at a place within the jurisdiction of the court, will be liable to be sued in England”.60

Enforcement of judgments

31.Witnesses were equally positive about the BIR’s rules on the enforcement and recognition of judgments across the EU.

Box 3: The Brussels I Regulation (recast): enforcement and recognition of judgments

The BIR includes provisions designed to facilitate the enforcement and recognition of judgments. In the areas of civil litigation covered by the Regulation, court judgments delivered by one Member State court must be recognised and enforced in another Member State without additional processes or procedures. 61 There are very limited grounds for refusal.62

32.Professor Fentiman said: “There is an advantage in the more or less automatic enforcement of judgments across borders. If you do not have that, you have to rely on the local rules being in force in particular states to enforce that judgment”.63 Richard Lord QC agreed that this aspect of the Regulation was “very important”.64

33.David Greene, speaking on behalf of the Law Society of England and Wales, said: “On enforcement, the certainty that we have with [the BIR] is that we can enforce the judgment that we secure in another jurisdiction”.65 Dr Helena Raulus, who also spoke on behalf of the Law Society of England and Wales, praised the BIR’s “near-automatic procedures”, whereby judgments and decisions are recognised in other countries. She concluded that in this regard all three Regulations provided “cost-effectiveness”.66

34.Professor Steve Peers, of the University of Essex, also focused on these provisions: “To tell someone suing … that they could face another year or two to get enforcement of their ruling and significant extra costs is a burden and a potential deterrent to doing cross-border business”.67

Box 4: Case study 1: the Brussels I Regulation (recast)

A clothes manufacturer in Manchester orders and pays for cotton from a supplier in Greece. When the order arrives, the manufacturer discovers that the quality of the cotton is not of the standard agreed in the contract. The supplier refuses to accept any liability and the manufacturer decides to seek redress through the courts.

The first question to be determined is where the case should be heard. In the absence of any prior agreement as to which country’s court should have responsibility for determining a dispute, the jurisdiction rules of the BIR should be used. These state that, in matters relating to a contract, the court with jurisdiction will generally be in the place of performance of the obligation in question. In the case of the sale of goods, that is the place where the goods were delivered or should have been delivered. In this case, that is England. It is for the court rules in England and Wales to determine which court can be used.

The second question is which law should apply to the case. The Rome I Regulation (see Box 16) helps to provide the answer. If the contract includes a ‘choice of law provision’, that provision would generally apply. However, if the contract includes no such provision, the law governing the contract for a sale of goods is generally that of the country where the seller is based.

As there was no agreement on jurisdiction or choice-of-law in the contract in question, the clothes manufacturer can bring his case in a court in Manchester and the dispute will be determined under Greek law.

The case itself proceeds in the English court with an expert witness advising on Greek law. If the court finds for the clothes manufacturer, he can use the BIR to have the judgment recognised for enforcement in Greece.

Source: HM Government’s Review of the Balance of Competences between the United Kingdom and the European Union: Civil Judicial Cooperation

The Minister’s view of the BIR

35.The Minister told us that since the result of the referendum the Government had consulted on all three Regulations, with a range of interested parties including judges, lawyers, academics and consumer groups. With regard to the BIR, the message that the Government had received from this process was that post-Brexit “an effective system of cross-border judicial cooperation with common rules is essential to embed certainty and predictability for businesses particularly for those with a commercial aspect”.68

36.The Minister recognised that the BIR was “important”, and explained that in the Government’s view, “the content … is key, especially with regard to mutuality and reciprocity”. He understood that the “great advantage” of the BIR was that “we know that other countries will follow the same rules as we do”.69 He suggested that it was “too early to say what extent [the BIR] will feature in any agreement” between the UK and the EU, but acknowledged that “these are important principles that will form part of the negotiations”.70

37.The predictability and certainty of the BIR’s reciprocal rules are important to UK citizens who travel and do business within the EU. We endorse the outcome of the Government’s consultations, that an effective system of cross-border judicial cooperation with common rules is essential post-Brexit.

38.We also note the Minister’s confirmation, in evidence to us, that the important principles contained in the Brussels I Regulation (recast) will form part of the forthcoming negotiations with the remaining EU Member States.

Potential problems if the UK leaves the BIR without alternative arrangements in place

Loss of certainty

39.Richard Lord QC was concerned that after Brexit, without the BIR or alternatives in place, there would be a loss of certainty: “The point is that businesses, and indeed individuals, like certainty and predictability.” He said that at present:

“If an English jurisdiction clause is inserted, that will be recognised … It might not be recognised if we lose the Regulation. Similarly, even if there is no jurisdiction clause, currently with this reciprocal system you are not likely to have two courts both saying, ‘I have jurisdiction’. If we lose that, you might have all sorts of problems with courts losing jurisdiction.”71

He concluded that, post-Brexit, and without a reciprocal alternative arrangement with the EU, “those who trade with Europe risk all sorts of problems”.72 Professor Jonathan Harris expressed similar concerns: “One would not have the same rules in the rest of the European Union, and one would have the attendant risk of parallel proceedings in other courts that could lead to inconsistent results.”73

Impact on London’s legal market

40.In its written submission, the Law Society of England and Wales pointed to “anecdotal evidence” of foreign businesses already being discouraged from using choice-of-court agreements that name “England and Wales as the jurisdiction of choice in commercial contracts” (see Box 5). If this trend continued, the Law Society anticipated a “detrimental [impact on] the legal services sector in England and Wales and the economic contribution it makes to the UK economy”.74

Box 5: Choice-of-court agreements

The BIR allows parties with a particular legal relationship to agree a specific jurisdiction for any dispute arising from that relationship (Article 25). These so-called choice-of-court agreements will be respected if the agreement is:

(1)in writing or evidenced in writing;

(2)in a form which accords with practices which the parties have established between themselves; or

(3)in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.

The lis pendens rule in the Brussels I Regulation (see Box 6) could formerly be used (or abused) to frustrate these agreements. The reforms enacted in the BIR in 2012 brought the use of this tactic to an end.

The Hague Convention on choice-of-court agreements is discussed in Box 15.

41.Oliver Jones argued that the potential loss of the Regulation posed “a clear and present threat to the ability of [the Regulation’s] jurisdictional rules to protect people”, and he too feared for London’s pre-eminence “as a legal market”.75 He called on the Government to make a clear announcement that “proceedings commenced under the current regime … will apply until it changes”, and hoped that “our partners in Europe” could sign up to this approach.76

42.Professor Fentiman expressed similar concerns about “the current degree of uncertainty” over which rules will apply after the UK leaves the EU. Despite seeing a viable alternative in the common law rules77 (see paragraph 103 below), he also believed that leaving the BIR posed an immediate threat “to the legal regulation of cross-border disputes and to the [UK’s] market for legal services”. He argued that “some decision should be made and some clarity offered now as to what the position would be post-Brexit”.78

43.Professor Peers also anticipated an impact on the UK legal market: “There is a risk … that people in the European Union will think this is an opportunity to divert or prevent business”. He posed a question: “What about every case that is pending on Brexit day? Do they continue under the rules of the EU regime? The same would apply to anything pending on the continent with British involvement or potential relevance for enforcement”.79

Box 6: Lis pendens and parallel proceedings

The original Brussels I Regulation, agreed in 2002 but replaced in 2012 by the recast BIR, attracted criticism for its rigid adherence to the lis pendens (proceedings pending) rule. This rule provided that where proceedings involving the same cause of action between the same parties were brought in the courts of different Member States, any court other than the court first seised must stay its proceedings until such time as the jurisdiction of the court first seised was established.80 The rule was developed to avoid parallel proceedings and to minimise the risk of incompatible judgments on the same facts from differing jurisdictions.

However, the rule gave rise to two related problems that the most recent amendment of the BIR sought to solve. First, as confirmed by the CJEU in its case law, the rule had to be applied rigidly, regardless of whether the proceedings first instituted were commenced with a genuine wish to pursue them to judgment, or with any genuine belief or prospect of maintaining that the court in which they were instituted had jurisdiction under the Regulation. Second, and in a large measure as a result, the rule was capable of being used or abused to frustrate or undermine a choice-of-court agreement (see Box 5). The practice of frustrating proceedings by issuing them first in Italy’s notoriously slow legal system gave this tactic its name: the ‘Italian Torpedo’.

In response, the BIR included a new provision, which allowed the Member State court specified in an exclusive jurisdiction clause to proceed to determine a dispute, even if proceedings had been commenced first in another Member State court. This amendment effectively disapplied the ‘first-in-time’ rule in the original Brussels I Regulation.

Inability to enforce judgments

44.For Sir Richard Aikens the Regulation’s importance lay in the rules ensuring “that judgments will be recognised and enforced across Europe”. Without these, “Even if you have a jurisdiction system that appears to work it is a major disadvantage if a judgment is produced by an English court that cannot be enforced in other European Union states”.81 Professor Harris QC warned that without the BIR, “we do not have the advantages of the free enforcement of judgments for individuals around the European Union”.82

45.Richard Lord QC agreed that “any alternative runs the risk of a lack of ability to enforce judgments, and the degree of confusion and uncertainty goes much wider than that … its loss would lead to a risk to businesses and the country generally”.83 Oliver Jones foresaw similar difficulties, and predicted that when UK lawyers were asked if Brexit posed a risk to the enforceability of UK judgments, “they will say, yes there is”.84

46.Our academic witnesses were more optimistic. Professor Fentiman believed that the potential loss of this aspect of the Regulation would not be “as significant as some people … imagine”. While he welcomed the advantages of having judgments automatically recognised across Europe, he argued that the potential loss of these rules to the UK did not pose “an existential threat”. In his view, “there is a ready, workable solution”: the common law.85 But he acknowledged that the common law offered a “unilateral and not a reciprocal solution”—it would provide certainty for UK courts, but it would not offer “reciprocal obligations as between us and member states of the EU”.86

47.In relation to legal services, Professor Briggs described the ability to enforce English judgments in EU Member States as a “side issue”.87 In his view, “the inability to enforce an English judgment in other Member states may not be so much of a problem if it can be enforced in England”, because, for example, “banks in which [defendants’] assets are found may have branches in London”.88

48.Dr Louise Merrett, of Cambridge University, argued that the disadvantage would be felt on the continent rather than in the UK, “because their judgments will not be automatically enforceable in England. That will be a disadvantage for other European jurisdictions trying to compete with us”.89 She also believed that if the UK failed to secure an agreement, the common law offered a short-term solution, which “would work well if we did nothing”. In the long-term, however, her preferred solution was for the Government “to try to negotiate a reciprocal regime”.90

49.We consider the utility of the common law as a replacement for the BIR in Chapter 4.

Loss of control over future iterations of this legislation

50.Looking beyond Brexit, Professor Peers warned that “one risk of not being part of the EU system is that it might be changed … to take account of the UK not being part of it any more”. He speculated that the remaining EU Member States might develop the system “in such a way that you no longer have the British influence … and that it would develop … as to attract business away from London”.91 For example, he said: “One way … is to make enforcement more difficult than it is at the moment … by raising additional barriers”.92

51.Oliver Jones agreed: “If we lose a system like the current regime, we are very much at the mercy of whatever national rules other member states may choose to adopt in relation to us”.93

52.While academic and legal witnesses differed on the post-Brexit enforceability of UK judgments, it is clear that significant problems will arise for UK citizens and businesses if the UK leaves the EU without agreement on the post-Brexit application of the BIR.

53.The evidence provided to us suggests that the loss of certainty and predictability resulting from the loss of the BIR and the reciprocal rules it engenders will lead to an inevitable increase in cross-border litigation for UK based citizens and businesses as they continue to trade and interact with the remaining 27 EU Member States.

54.We are concerned by the Law Society of England and Wales’ evidence that the current uncertainty surrounding Brexit is already having an impact on the UK’s market for legal services and commercial litigation, and on the choices businesses are making as to whether or not to select English contract law as the law governing their commercial relationships.

55.The Government urgently needs to address this uncertainty and take steps to mitigate it. We therefore urge the Government to consider whether any interim measures could be adopted to address this problem, while the new UK-EU relationship is being negotiated in the two year period under Article 50.

The Great Repeal Bill—a solution?

56.The Government has promised that the Great Repeal Bill (GRB) will provide legal certainty after the UK’s exit from the EU, and will “ensure that all EU laws which are directly applicable in the UK (such as Regulations) … remain part of domestic law on the day we leave the EU” (emphasis added).94

57.Professor Fentiman doubted the utility of the GRB to address the loss of the BIR post-Brexit. He argued that the GRB would not be “appropriate to implement aspects of the current EU regime in this area as domestic legislation”. The reason was “very simple”: the BIR maintained “rules that in their nature operate in a reciprocal way, but there would be no reciprocity post-Brexit if we were simply to include these rules in national legislation”.95

58.Professor Briggs agreed. The BIR required “reciprocal action on the part of the other states … [there] is no law which the United Kingdom can enact to render English judgments entitled to recognition and enforcement in the rest of Europe”.96

59.The Minister sought to provide reassurance. He suggested that the “great advantage”97 of the BIR lay in its reciprocal rules, and stated that the Great Repeal Bill would “ensure that all existing EU law that applies in our country, the acquis as it is known, will be imported into UK law”. There would be no “hiatus” in coverage, and “we will not have a gap”.98

60.The evidence we received is clear and conclusive: there is no means by which the reciprocal rules that are central to the functioning of the BIR can be replicated in the Great Repeal Bill, or any other national legislation. It is therefore apparent that an agreement between the EU and the UK on the post-Brexit application of this legislation will be required, whether as part of a withdrawal agreement or under transitional arrangements.

61.The Minister suggested that the Great Repeal Bill will address the need for certainty in the transitional period, but evidence we received called this into question. We are in no doubt that legal uncertainty, with its inherent costs to litigants, will follow Brexit unless there are provisions in a withdrawal or transitional agreement specifically addressing the BIR.

Which alternative jurisdictions gain from the current uncertainty

62.We have already cited the Law Society’s “anecdotal evidence” that Brexit has introduced a degree of uncertainty into the application of the BIR to choice-of-court agreements in the UK. This, in turn, has placed a question mark over the legal protection conferred on UK-based citizens and businesses, and over London’s pre-eminence as a legal market. We asked our witnesses which jurisdictions might gain from this uncertainty.

63.Richard Lord QC warned that “a regime in future that is inherently uncertain is on the whole bad for business and for Britain. Uncertainty about how uncertain it will be compounds that”.99 He suggested that “Paris, Hamburg or Rotterdam” might gain from this uncertainty.100

64.Hugh Mercer QC for the Bar Council predicted that litigants “may well go to the Netherlands or possibly Germany, although there the English-language courts have had rather modest success”. He suggested that “global litigation … could be Paris, Geneva or Stockholm or New York … or Singapore, which is putting in a big pitch, or Dubai”.101

65.Building on the Law Society’s written evidence, Dr Helena Raulus said that “post the EU referendum [other jurisdictions] look at the UK’s and the English courts’ jurisdiction as only one of the options at this point, not as an automatic option as previously”.102 She continued: “We have seen a move to grab—if you want to use that word—commercial litigation for the continental courts. The Dutch, for example, are building a commercial court that also operates in English.”103

66.Our witnesses also saw arbitration as a chief beneficiary. Hugh Mercer QC said that arbitration “could still be London”,104 and Sir Richard Aikens agreed: “Ultimately … the beneficiaries might actually be the arbitrators … You can specify arbitration in London, Geneva or wherever, have whichever law you want … and you can enforce it under the New York Convention … there is no problem.”105

67.Oliver Jones agreed: “My personal view of who will win out is … the arbitration centres”, in particular given the New York Convention on the universal enforceability of arbitration decisions (see Box 7). But he warned that greater recourse to arbitration would come at a cost to the wider legal system: “Arbitration takes place in private—it is not an open, public hearing—and the more we push towards an arbitration centred model, the more we lose open justice and the rule of law.”106

Box 7: The New York Convention107

The 1958 UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards (sometimes referred to as the ‘New York Arbitration Convention’ or the ‘New York Convention’) applies to the recognition and enforcement of foreign arbitral awards and the referral by a court to arbitration. Thus it performs a similar but considerably more limited role as the BIR. It requires its signatories to recognise arbitration agreements (Article II) and enforce them in accordance with each State’s national rules (Article III). It also includes rules dealing with the procedures for recognition (Article IV).

68.In response to these concerns, the Minister argued that “UK law, particularly English law, is renowned across the globe”. In the Minister’s view, “We are a very important legal power … and my feeling is that although we need to reach a sensible agreement we should not be too nervous about our future.” He did not believe that “we will fall down the rankings [because] we are a world brand in this area”. He also asserted that “we are the world leader in commercial arbitration”.108

69.The evidence suggests that jurisdictions in other EU Member States, and arbitrators in the UK, stand to gain from the current uncertainty over the post-Brexit application of the BIR, as may other areas of dispute resolution.

70.With regard to arbitration, we acknowledge that the evidence points to a gain for London. But, we are also conscious of the evidence we heard on the importance of the principles of justice, in particular openness and fairness, underpinned by the publication of judgments and authorities, which are fundamental to open law. It is our view that greater recourse to arbitration does not offer a viable solution to the potential loss of the BIR.


26 The Treaty of Rome (1957), Article 220

27 The 1968 Brussels Convention on jurisdiction and enforcement of judgments in civil and commercial matters, OJ L 299, 31 December 1972

28 The Convention’s stated aims were: (i) to avoid parallel legal proceedings within the six Member States; (ii) to simplify the recognition and enforcement of judgments; and, (iii) to strengthen the legal protection afforded to the citizens of the Member States. The Brussels Convention was amended and extended on subsequent occasions following the accession of the United Kingdom and other states to the European Community.

30 Council Decision 2005/790/EC of 20 September 2005, on the signing, on behalf of the Community, of the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. OJ L 299, 16 November 2005, pp 61–70

31 This Committee submitted its own report to the Commission’s consultation: European Union Committee, Green Paper on the Brussels I Regulation (21st Report, Session 2008–09, HL Paper 148)

36 Regulation 1215/2012, 12 December 2012, on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters (recast), OJ L351/1, 20 December 2012, (Brussels 1 Regulation recast) Recital 26

40 Article 7(1) of the Brussels 1 Regulation (recast)

41 Articles 17–19 of the Brussels 1 Regulation (recast)

42 Article 7(2) of the Brussels 1 Regulation (recast); in the jurisdiction where the negligent act occurred.

43 Articles 10–16 of the Brussels 1 Regulation (recast)

44 Articles 20–23 of the Brussels 1 Regulation (recast)

45 Article 7(6) of the Brussels 1 Regulation (recast); in the Member State where the trust is domiciled.

46 Article 7(7) of the Brussels 1 Regulation (recast)

48 Article 24(1) of the Brussels 1 Regulation (recast)

49 Article 24(2) of the Brussels 1 Regulation (recast)

50 Article 25(3) of the Brussels 1 Regulation (recast)

51 Article 24(4) of the Brussels 1 Regulation (recast)

52 Article 24(5) of the Brussels 1 Regulation (recast)

57 For an explanation see Box 6.

60 Written evidence from Prof Briggs QC (Hon) of Oxford University (CJC0002), para 39

61 Articles 36–44 of the Brussels 1 Regulation (recast)

71 Q 14. See also Box 6 on the problems of parallel proceedings.

74 Written evidence from the Law Society of England and Wales (CJC0001), para 4

77 Use of the term “common law” in this report, refers to the case law of the UK courts dealing with jurisdiction and the recognition and enforcement of judgments.

80 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L 12, 16 January 2001, pp 0001–0023, Article 27(1) of the original Brussels I Regulation

87 Written evidence from Prof Briggs (CJC0002), para 45

88 Written evidence from Prof Briggs (CJC0002), para 42

94 HM Government, The United Kingdom’s exit from and new partnership with the European Union, Cm 9417, February 2017, p 10: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/589191/The_United_Kingdoms_exit_from_and_partnership_with_the_EU_Web.pdf [accessed 27 January 2017]

96 Written evidence from Prof Briggs (CJC0002), para 10

107 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958): http://www.newyorkconvention.org/english [accessed 27 January 2017]




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