THE REVISED LIS PENDENS-RULE IN THE BRUSSELS JURISDICTION REGULATION
THE REVISED LIS PENDENS-RULE IN THE BRUSSELS JURISDICTION REGULATION

Summary/Abstract: Regarding the amendments to the Brussels I in general, it is appropriate that the Regulation has not been the subject of such an extensive and substantial revision as the Commission suggested. Namely, it is one of the most important instruments of EU private international law which has generally not resulted in significant difficulties in the application and interpretation by the national courts. Therefore, a decision to substantially revise such an important and rather successful legal instrument should not be taken without careful consideration. As to the exception to the priority rule under the general lis pendens rule in the case of choice of court agreements, it is likely that it will be effective in combating 'torpedo actions'. Yet it is questionable whether the revised rule will generally enhance efficiency in dispute resolution. In particular, it would have been more appropriate to provide for a list of grounds on the basis of which a court seised would not be under the obligation to refer the parties to the chosen court. This is especially so when a choice of court agreement is obviously invalid or inoperable. The obligation of the court seised to refer the parties to the chosen court in such cases will unnecessarily delay dispute resolution. The reference to the conflict of law rules of the state whose court is designated in the forum-selection agreement is not appropriate as it does not provide for the true uniformity of the rule to determine the law applicable to the substantive validity of the choice of court agreement. Rules on parallel actions in third countries provide for a useful addition within the regulatory framework of the revised Brussels I Regulation. The same holds true with respect to the clarification as to the extent of the arbitration exception and the interface between the Regulation and arbitration. Rejecting the Commission's Proposal in that respect is to be met with approval, considering its substantial drawbacks and the deficiencies in its wording.

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