Brussels I Regulation 2012

The basic principle is that the court in the member state of the party that gets sued has jurisdiction, while other grounds exist, which are diverse in content and scope, and are often classified in descending order of exclusivity and specificity.

[7] This exceptional case of exclusivity is justified in various ways; ranging from the presence of special legislation which, due to its complexity, "should preferably be applied only by the courts of the country in which it is in force" to interests of "legal certainty", with the goal to "avoid conflicting judgments".

[19] The special protection these articles provide has as a main effect the broadening of the domicile of the 'stronger' party, so that the 'weaker' party, be it the consumer, employer or insured individual, has an increased range of locations for suing the first, while at the same time not allowing this broadened sense of domicile the other way around.

[27] This provision, of which the Jenard Report states that it is “unnecessary to stress the importance (...), especially in commercial relations”, tries to strike a balance between two interests.

[28] On the one hand, it tries to "cancel out the effects of clauses in contracts which might go unread", implying that there must be safeguards to ensure that a party actually consented to the choice of forum, and on the other hand, "excessive formality which is incompatible with commercial practice" should be avoided, stressing the importance of not sacrificing too much of the swiftness of commercial practice.

[28] As stated in the Colzani case, "the validity of the clauses conferring jurisdiction must be strictly construed" to ensure that "the consensus between the parties is in fact established".

[30][31] The first route to reach a choice of forum agreement, is through ‘writing or evidenced in writing’; consistent with the above-mentioned purpose however, the mere fact that for instance a clause conferring jurisdiction is printed among the general conditions on the reverse of the contract, is not sufficient on its own, since “no guarantee is thereby given that the other party has really consented”.

[32] Second, one can reach a choice of forum agreement 'in a form which accords with practices which the parties have established between themselves'; in this situation, an oral agreement can for example be sufficient, if it "forms part of a continuing trading relationship" and that "the dealings taken as a whole are governed by the general conditions of the party giving the confirmation".

[33] Indeed, in that scenario, it would be "contrary to good faith" for the recipient of the confirmation to deny the existence of a jurisdiction conferred by consent, "even if he had given no acceptance in writing".

This clause is consistent with the 2005 Hague Choice of Court Agreements convention, which the Union has signed, and for which the approval regulation is currently evaluated by the European Parliament.

First, ‘matters relating to a contract‘ lacks, although the European Court of Justice (ECJ) considers it as an "independent" and thus 'European' concept,[37] a clear or uniform definition.

[43] Although this specification can be very helpful to the case, its implications, such as the possibility of a multitude of fora, have led to a rather extensive case-law governing the subject, making this provision a complex matter.

This residual jurisdictional rule is justified on two grounds; first, to “ensure the free movement of judgments”, and second, to “perform a function in the case of lis pendens” (infra).

[48] Chapter II, Section 9 of the Regulation deals with the hypothesis[clarification needed] of lis pendens and related actions.

The common objective and background rationality of all these articles is to "avoid the risk of conflicting judgments and thus to facilitate the proper administration of justice in the Community" by preventing that the same or related actions be decided upon by courts in different Member States.

[50] Second, Article 28 (2012 recast: Article 30) of the Regulation functions as a sort of ‘safety-net‘ for actions which do not meet the above-mentioned requirements, but where the actions are nonetheless ‘related’: “they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings”.

[54] However, importantly, the measures given must be provisional only: they must be “intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is sought elsewhere from the court having jurisdiction as to the substance of the matter”.