The Brussels I Regulation and Third Countries

Abstract

This essay is a brief critique of the regime established by the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters and its successor, the European Union’s Brussels I Regulation. The essay focuses only on those of the regime’s aspects that affect defendants domiciled out-side the EU (third-country defendants) and certain proceedings in courts outside the EU. From the EU perspective, the Brussels regime is an unqualified success.

Regrettably, one cannot say the same about some of the regime’s external aspects. In particular, the regime discriminates against third-country defendants by:

(1) subjecting them to exorbitant jurisdictional bases available under the national laws of many EU states (although it prohibits the use of those same bases against defendants domiciled in the EU); and

(2) mandating recognition of the resulting judgments throughout the EU. Other, more subtle, discriminatory features include the way the regime treats the claims of exclusive jurisdiction of third countries, as compared to EU states, and agreements conferring exclusive jurisdiction on the courts of third countries rather than to courts of EU states.

In 2018, a year of coarsened international discourse in which discriminating against “the other” has become a political banner for some forces and threatened or real trade wars and retaliations initiated primarily by one particular political leader are becoming commonplace, these discriminatory features of the Brussels are small potatoes. Nevertheless, if private international law is, as Werner Goldschmidt taught us, the derecho de la tolerancia, we must continue to speak up against intolerances, be they big or small, new or old.

Keywords: private international law, conflict of laws, jurisdiction, foreign judgments, Brussels I, forum selection, comparative law

JEL Classification: K10, K13, K19, K33, K40, K41