Proposal for a regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) - Contributions of Marie-Laure Niboyet

15-09-2011

In the mechanism proposed by the Commission for abolition of the procedure for recognition and enforcement of judgments (exequatur), the formalities associated with the exequatur process are indeed removed but the review process remains and is applied a posteriori in the event that a remedy is sought by the defendant in the Member State of enforcement. This position of compromise should be approved. Nonetheless, the system of remedies lacks clarity, is still insufficient in protecting the fundamental rights of the defendant and should be entirely located in the Member State of enforcement. With regard to the provisions intended to increase the efficiency of choice-of-court agreements, the proposed modifications remedy the serious shortcomings existing in the current system, as interpreted by the Court of Justice. However, it would be useful for a separate, more favourable Brussels I regime to be maintained for situations that are not governed by the Hague Convention. With regard to the two other points (the operation of the Regulation in the international legal order and the improvement of the interface with arbitration procedures), the debate is still raging. After having set out the issues and outcomes associated with the proposed choices, this note takes a position in favour of an extension of the regulation to all external disputes, subject to several additions, and a radical exclusion of arbitration from the scope of application of the regulation, subject to a valid and applicable prima facie clause being invoked. It is less certain whether new provisions on more specific innovations (Articles 5(3) and 85) would be useful.

In the mechanism proposed by the Commission for abolition of the procedure for recognition and enforcement of judgments (exequatur), the formalities associated with the exequatur process are indeed removed but the review process remains and is applied a posteriori in the event that a remedy is sought by the defendant in the Member State of enforcement. This position of compromise should be approved. Nonetheless, the system of remedies lacks clarity, is still insufficient in protecting the fundamental rights of the defendant and should be entirely located in the Member State of enforcement. With regard to the provisions intended to increase the efficiency of choice-of-court agreements, the proposed modifications remedy the serious shortcomings existing in the current system, as interpreted by the Court of Justice. However, it would be useful for a separate, more favourable Brussels I regime to be maintained for situations that are not governed by the Hague Convention. With regard to the two other points (the operation of the Regulation in the international legal order and the improvement of the interface with arbitration procedures), the debate is still raging. After having set out the issues and outcomes associated with the proposed choices, this note takes a position in favour of an extension of the regulation to all external disputes, subject to several additions, and a radical exclusion of arbitration from the scope of application of the regulation, subject to a valid and applicable prima facie clause being invoked. It is less certain whether new provisions on more specific innovations (Articles 5(3) and 85) would be useful.