New Recast Regulation

Therefore, under the new Recast Regulation,[1] regardless of whether any non-chosen court may be seized first, the chosen court will make a determination of its own jurisdiction.[2] This can be considered more of an exception to the rule as the lis pendes rule is still fully enforceable.[3] This is also emphasised in the Recital which clarifies its rational.[4] The effect of the new exception as highlighted in the Commerzbank[5]case. In this case Cranston J held that the exception had allowed for enhanced judgements and a prevention of abusive tactics.[6] What the recast aims to achieve is simply to reverse the rule in Gasser by ultimately giving priority to the chosen court. This will remove the possibility for an individual to delay court proceedings, which favour the other party, therefore making the process a lot fairer.

However, it must be noted that there is not a complete elimination of the “torpedo.” The recast[7] has been silent on clarifying if the new exception can also address both identical and related proceedings.[8] The previous regulation had dealt with this issue differently[9] Under the recast, there is no mention of this scope. When read in conjunction with Article 29 and Recital 22 of the Regulation,[10] Alavi[11] argues that there is ambiguity as to whether this covers related actions. If this is the case, there is gaps for torpedo actions to occur. Individuals will be yet be able to abuse the system and make judgments unfair thus prevent justice to prevail.

[1] Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ L 351/1, 20 December 2012.

[2] ibid, Article 31 (2)

[3] ibid

[4] ibid, Recital 22 states: “in order to enhance the effectiveness of exclusive choice-of-court agreements and to avoid abusive litigation tactics, it is necessary to provide for an exception to the general lis pendens rule in order to deal satisfactorily with a particular situation.”

[5] Commerzbank Aktiengesellschaft v Liquimar Tankers Management Inc. [2017] EWHC 161 (cell phone repair Austin)

[6] ibid, para 69

[7] Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ L 351/1, 20 December 2012, Article 31

[8] Hamed Alavi, ‘A step forward in the harmonisation of European jurisdiction: Regulation Brussels I Recast (2015) Baltic Journal of Law and Politics 159

[9] Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Article 27 and 28. Article 27 states that any court is obliged to stay the proceedings until the initial court seized decides whether or not it has jurisdiction. Article 28 allows the court to stay or not stay the proceedings.

[10] Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ L 351/1, 20 December 2012

[11] Hamed Alavi, ‘A step forward in the harmonisation of European jurisdiction: Regulation Brussels I Recast (2015) Baltic Journal of Law and Politics 159