The Brussels I Regulation and concurrent proceedings in third countries: a possible reform

Conflicts of jurisdictions with States which are not member of the European Union (third States) is probably one of the biggest challenges for EU private international law. Keeping in mind this general framework, this article deals namely with the topic of concurrent proceedings, that is situations where similar claims are simultaneously brought before a court in a EU Member State and a court in a non-EU State, in the perspective of a possible reform of the Regulation (EC) No 44/2001 (Brussels I). The problem currently arises because the Regulation, while conferring jurisdiction upon EU courts also in relation to cases connected with third countries, does not cover the distinct issue of declining jurisdiction in favour of third countries, in particular as to whether, and under what conditions, proceedings may be stayed or dismissed in favour of courts in a third State before which similar claims have been brought (extra-European lis pendens); courts in the Member States may then apply their domestic rules, but only to the extent that they comply with the EU rules on jurisdiction. In this regard, the current situation is uncertain and troubling. On the one hand, the main cause for concern stems from the judgment given by the ECJ in the Owusu case, which could indeed be construed as implying the exclusivity of the Brussels I jurisdictional system vis-à-vis the outer world. Although this would be at odds with the need for legal protection of EU-domiciled people, which is one of the main objectives pursued by the EU p.i.l., the diverging responses given by national courts following Owusu demonstrate how unclear the law currently is. On the other hand, the very different ways in which Member States handle lis pendens situations may jeopardise the uniform application of the jurisdictional rules laid down in Brussels I. Turning to explore how the law ought to be, it is then submitted that Brussels I should be amended in order to resolve the current problems. First of all, the European legislature should explicitly allow lis pendens exception in favour of third countries. As regards the consequent question about the scope of the EU regime for “external” lis pendens situations, the alternative is between only assessing in which cases jurisdiction derived from EU law may be declined in favour of non-Member States and in which cases it must not (“minimum” approach) and also setting up uniform requirements which a stay of proceedings should be subject to (“maximum” approach)