Judicial Discretion in light of the New European Rules on Jurisdiction in Civil and Commercial Matters: Reform or Continuity? Common law perspectives

One of the great divides between the common law and civil law approaches to the exercise of jurisdiction in domestic or cross-border cases concerns the discretionary powers afforded to judges: while common law countries traditionally endow the judiciary with discretion in certain areas, civilian countries regulate adjudicative jurisdiction through rigid rules which are considered to leave no room for judicial discretion.

Jurisdiction rules applicable in international civil and commercial matters have been harmonised in Europe for almost half a century. It is an essentially civilian approach which prevailed in this ‘Brussels regime’, and this had, in the last decade, given rise to some practical difficulties as well as intense criticism. The recent revision of the Brussels regime - through Regulation (EU) 1215/2012 of the European Parliament and the Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Recast) – was an occasion to review and reform those harmonised rules and approaches.

This paper evaluates the extent to which the recast jurisdiction provisions of Brussels I impact on the exercise of judicial discretion by courts in the EU. Following an examination of the situations in which courts might moderate the exercise of their own competence or indeed influence that of other courts, this paper concludes that under the Brussels I Recast, the domain of both anti-suit injunctions and forum non conveniens has, if anything, been even further reduced. However, the Recast has not only corrected some of the unwelcome consequences of an overly civilian interpretation of the Brussels I Regulation but simultaneously introduced, throughout the territory of the EU, a harmonised mechanism of jurisdictional regulation based on judicial discretion (which was hitherto available only in a few Member States). On this aspect, the Recast has the great merit of promoting (at least on paper) a better coordination between European procedures and those of third States.