The Recast of Brussels I and Jurisdiction over Third State Defendants

Universalization of jurisdictional rules was a major issue in the recently concluded process for the recast of the Regulation. As is well known, the Commission proposed to extend the scope of application of harmonized jurisdictional rules to defendants domiciled in third countries, thereby excluding recourse to national heads of jurisdiction and raising new issues such as the need for subsidiary grounds of jurisdiction and the coordination with proceedings pending in third countries. Arguably perceived as too bold, a full universalization of jurisdictional rules has eventually never seen the light of the day, as this part of the Commission Proposal was rejected. However, although keeping the basic structure of Brussels I intact, the recast Regulation approved by the Council last November has taken some of the Commission’s suggestions towards the construction of jurisdictional rules applicable erga omnes (especially on consumer contracts, see Art. 18(1)). The first part of the paper analyzes the imperfect double nature of Brussels I, arguing that the regime enshrined in it is largely unsatisfactory, as it presents several shortcomings in terms of legal certainty and equal treatment both among third State defendants and among EU plaintiffs. The recast Regulation is then compared with the Brussels I Regulation as well as with the Commission Proposal and critically appraised. It is submitted that, while some solutions may deserve praise, the recast results in a modest improvement and represents a missed opportunity to remedy the shortcomings of the Brussels I Regulation by granting universal application to the harmonized heads of jurisdiction.