On 14.12.2010, following a consultation process, the European Commission published a draft revised (recast) Brussels Regulation. The key areas addressed in the Commission’s legislative proposal are as follows:
- New rules concerning third state (non-EU) matters and defendants
The Brussels Regulation provides jurisdiction rules mainly with respect to defendants domiciled in the EU Member States. The Commission proposes to extend their application to non-EU defendants, allowing for third party defendants to be sued within the EU. This is particularly relevant in the context of matters relating to insurance (Article 9(1)), consumers (Article 15) and
employment contracts (Article 19). In addition, claimants may bring proceedings against non-EU defendants at the Member State where property belonging to the defendant is located (Article 25) and if no other forum guarantees the right to a fair trial or the right to access to justice (Article 26). The proposed amendments also introduce a discretionary lis pendens (pending lawsuit) rule whereby a Member State court may stay its proceedings if the courts of a third state was seised first and will render a judgment within a reasonable time (Article 34).
- Changes to the lis pendens (dispute pending elsewhere) provisions
Under the existing rules in the Brussels Regulation, the court second seised must stay its proceedings until the court first seised rules on whether it has jurisdiction. This applies even if there is a jurisdiction agreement between the parties, and the second seised court is the one designated by the parties. This lis pendens rule has been exploited by litigants acting in bad faith to delay
proceedings by first seizing a non-competent court aimed (the so called “Italian torpedo). To remedy the situation, the Commission’s proposal gives priority to the court chosen by the parties to decide on its jurisdiction, regardless of whether it is first or second seised (Article 32(2)).
- Improvement of the interface between the Regulation and arbitration
Despite earlier indications that the “arbitration exception” in the Brussels Regulation (Article 1(2)(d)) would be excluded, the proposal preserves the arbitration exception and now provides, in addition, for a stay of arbitration related court proceedings, where the issue of a tribunal’s jurisdiction has already been raised before either the courts of the seat of arbitration or the tribunal itself (Article 29(4)).
- Better coordination of parallel proceedings
The Commission’s reform aims at strengthening the coordination of legal proceedings in the Member States. The proposed measures include specifying a time limit for the court first seised to determine its jurisdiction (Article 29(2)), sharing information between the courts seised of the same action (Article 29(2)) and removing the requirement that consolidation of related actions must be allowed under national law (Article 30(2))
- Abolition of exequatur (the intermediate procedure for the recognition and enforcement of judgments)The amendment aims to simplify the system for enforcing judgments across EU Member States and thus reducing costs and delays associated with the exequatur procedure. It provides for the introduction of standard forms to facilitate the recognition and enforcement of foreign judgments by the competent authorities. The proposal also envisages several procedural safeguards to prevent, in exceptional circumstances, enforcement of a judgement given in one Member State in another Member State. It is proposed, however, that the abolition of exequatur would not apply in defamation cases and collective redress.
- Clarification on the circulation of provisional and protective measures in the EU
The reform includes the provision for the free circulation of provisional, including protective, measures by the courts with jurisdiction as to the substance of the dispute, including measures granted ex parte (subject to conditions) (Recital 25). The proposal also requires the court seised with an application for provisional and protective measures to cooperate with other courts with jurisdiction over the substance of the matter (Article 31).
We are able to assist in the registration and execution of foreign judgments in Cyprus. If you require further information or advice regarding the registration and enforcement of foreign judgments in Cyprus contact us using [email protected]
Theodorou Law is a Cyprus law firm with Cyprus lawyers and other legal experts on legal matters involving Cyprus law, EU law and international law. The above should be used as a source of general information only. It is not intended to give a definitive statement of the law and is subject to the disclaimer.