Part 2 – Law

Recital 12 of the recast provides for a better insight in what limitations arbitration has in relation to the regulation. The reinforcement and widening of the exclusion of arbitration can be considered a great improvement in reaching the objective that it has set out to achieve, namely improving the previous position in avoiding the ambiguity of arbitration exclusion whilst also providing clarity on the relationship that arbitration has with the Brussels regime.

Another key area of concern in the 2001 Regulation was the application of the Convention to Third State parties.[1] Here, the scope of the application of the 2001 Regulation has been criticised in respect to a CJEU decision in Owusu v Jackson.[2] The case concerned an individual, Owusu domiciled in the United Kingdom, vacationing in Jamaica where he suffered injuries. The court proceedings brought against the proprietor of the vacation home where Owusu had suffered the injuries, Jackson, was also an UK domiciliary.[3] The defendants had made an application to the court requesting that the case be tried in Jamaica, as there were closer links to that jurisdiction.[4] The Court of Justice of the European Union rejected this application based on the Brussels Convention article 2 and the doctrine of forum non conveniens.[5] The key aspect of this case was the conclusive notion that a Member State seised could not decline jurisdiction in favour of a third-state court, even although the latter may be deemed more appropriate for the court proceedings.[6] This raised concern, as the court-of-choice agreements could be disregarded if such application of the regulation was possible between Member States and Third countries. This judgement has raised a clear issue that requires vital reconstruction to avoid ambiguity in the relationship between Third States and the Member States of the Union in the future with respect to jurisdiction in claims reaching beyond the Union.

With the objective of preservation of enforcement of choice-of-court agreements involving third-states, it has been disclosed in the preamble of the recast[7] that all the facts and circumstances need to be considered when assessing the appropriate choice of court. The recast regulation has provided more clarity in this area setting out specific legislative changes enclosed in section 9.[8] Read together, articles 33 and 34 of the recast provide clear rules on when a Member State can choose to stay proceedings when dealing with a case involving a third-state. The legislative provisions lay down that the Member State may stay proceedings in favour of the non-Member State given that the judgement reached will be capable of recognition[9] and that for the purpose of administration of justice[10] it is necessary for the Member State to stay the proceedings. These improvements provide clear rules on how to proceed in non-Member State cases, however what remains absent from the recast is if a Member State has to stay proceedings in favour of an existing exclusive jurisdiction agreement involving a Third State. Going by what has been disclosed in the preamble in relation to this issue, an existing jurisdiction agreement may fall under one of the considerations that a Member State court must bear in mind before choosing to stay proceedings, however the issue remains unclear as no rule has been laid down to expand in such situations.[11]

[1]P. Cook, Justin, “Pragmatism in the European Union: Recasting the Brussels I Regulation to Ensure the Effectiveness of Exclusive Choice-of-Court Agreements”, Aberdeen Student Law Review, 2013

[2]Case C-281/02 Owusu v Jackson [2005] ECR I-1383

[3]ibid. para.11

[4]ibid. para 15

[5]ibid. para 16

[6]Grenfell, Sarah, Gandhi, Kushal, McKenna Cameron “Legislative Comment, The Brussels Regulation (recast)”, Comp. & Risk [2016], 5(1), 12-15

[7]ibid. Recital 24, From the notary public office in London

[8]Regulation (EU) No 1215/2012 art. 33 and 34

[9]ibid. Art.33 (1) (a)

[10]ibid. Art.33 (1) (b)

[11]Alavi, Hamed, Khamichonak, Tatsiana, “A STEP FORWARD IN THE HARMONIZATION OF EUROPEAN JURISDICTION: REGULATION BRUSSELS I RECAST”, Baltic Journal of Law & Politics 8:2 (2015): 159–181 <http://www.degruyter.com/view/j/bjlp> Accessed: 2 March 2017, DOI: 10.1515/bjlp-2015-0023