INTRODUCTION: BRUSSELS CALLING

During the nineteen-sixties the European Economic Community (EEC) was a regional organisation with only six Member States, all adhering to the continental European civil law legal tradition. They were only at the start of a long process to incorporate their markets. Already at this early stage, it became apparent that in order to ensure the proper functioning of an internal market and to avoid abuses (debtors quickly and easily moving their assets), a regime of the recognition and enforcement of judgments within the EEC was necessary.

From an outside (sometimes referred to as ‘third State’) perspective, two elements of this early choice are significant. First, the focus was on the recognition and enforcement within the EEC: this was an internal initiative serving an internal goal. Its aims were different from the initiatives undertaken by the Hague Conference on Private International Law, which were more global in their nature.

Second, the Member States of the EEC opted for a double convention (sometimes called a ‘mixed convention’), i.e. a convention including provisions not only on recognition and enforcement, but also on jurisdiction. This choice has had a vital impact outside the Member States.

The purpose of this contribution is to examine the effect of the Brussels Ibis Regulation outside its natural place of functioning, namely the EU. Many transactions today are concluded and/or executed partly in the EU and partly elsewhere. This extra-EU effect was not a major concern for the drafters of the previous editions of the Brussels Convention or the Brussels I Regulation (2001 version)4. At the time of the drafting of the Brussels Ibis Regulation, the EU institutions did consider the issue of its global effect. However, only small changes were made. These include a broadened scope for the benefit of certain forum agreements and of EU consumers dealing with companies outside the EU. Important improvements in Brussels Ibis include the limited possibility to decline jurisdiction in favour of courts outside the EU and a yielding to the Hague Choice of Court Convention. All considered, the current calls by Brussels to the world are still insufficient in a global context.

Fifty years ago, the Brussels Convention saw the light of day. The European leaders sensed more judicial cooperation was needed if they ever truly hoped to achieve a single market. Businesses and consumers will more easily engage in activities across borders when they have the certainty that a judgment obtained in one Member State will be enforced in another. As there was no legal basis in the Treaties, a classic international treaty was adopted to harmonize jurisdiction as well as the recognition and enforcement of judgments within the European communities.

In fifty years, European private international law has undergone several significant changes: the Brussels Convention has been replaced by regulations, authentic EU instruments; applicable law is no longer disregarded; interpretations of existing provisions have changed; and some fields of private international law previously left for the Member States have been included in the harmonization process. Additionally, there have been some important developments on an international level such as the Hague Judgments Project. Moreover, increased globalization and the emergence of e-commerce has led to an elevated need for and more widespread reliance on private international law.

Each year, the editorial team of Jura Falconis scours the libraries and legal databases for a relevant topic to discuss at the annual Jura Falconis conference. Oft en we focus on what the future holds for the law student, the legal practitioner, the academic: a new law, a future development, a novel evolution. The 50th anniversary of the Brussels Convention, however, presented itself as the perfect opportunity to pause and reflect on the past, to see how far we have come and how we go from here.

Because of the increased relevance of private international law, most legal practitioners can no longer avoid it in their day-to-day practices. Therefore, a thorough revision of the most important aspects of European private international law is certainly not futile. The goal of the conference, however, was not only to refresh students’, practitioners’ and academics’ memories regarding the history, the application and the implications of European private international law but to also off er a view of tomorrow. What will be the future direction of European private international law? What are, for instance, the possible ramifications of the looming Brexit?

INTRODUCTION

At first glance, it would seem that fifty years have passed and that the regime of provisional and protective measures has remained entirely unchanged in European law. The central provision on this matter in the Brussels I Regulation Recast (Article 35) is drafted in nearly identical terms as the corresponding provision of the 2001 Regulation (Article 31), which itself borrowed from the 1968 Brussels Convention (Article 24). It is a very short provision which gives the power to the courts of any Member State to grant provisional measures under their own law ‘even if the courts of another Member State have jurisdiction as to the substance of the matter’. On its terms, the provision appears to be a very straightforward rule of delegation to domestic law for anything related to the granting of provisional measures.

Yet, beyond this appearance of simplicity lies one of the most complex matters of the Brussels regime, which is the subject of a very rich jurisprudence and of a sophisticated legal system which has evolved over time, including in the Recast Regulation.

There are three main factors that have elevated the strategic importance of this matter over time. Firstly, in modern commercial litigation, provisional measures have oft en an important practical impact on the parties and their dispute. When at the outset of a commercial contract dispute, a party obtains an asset freezing injunction, or the provisional attachment of assets, this may place the other party in an impossible practical situation which may force a settlement. Likewise, when the party alleging an IP infringement is able to obtain an interim injunction preventing the marketing of products which are alleged to be infringing the IP rights, this will give this party the upper hand throughout the process. Provisional measures are oft en outcome determinative.

Secondly, there has been a development in the practice of several Member States to grant cross-border provisional measures, namely measures that affect persons and assets situated in the territory of other States. The English courts have played an active role in the development of these types of measures, starting with world-wide freezing injunctions and moving over the years to other crossborder in personam measures, such as disclosure orders, receivership orders and search orders.

INTRODUCTION

The purpose of this paper is to examine the relation between the Insolvency (Recast) Regulation and the Brussels I (Recast) Regulation. This relation is notoriously unclear (‘einen der umstrittensten und schwierigsten Komplexe des Internationalen Insolvenzrechts’1). In order to shed some light on the matter, the boundary between both regulations will be examined.

A complicating factor in this respect, is the evolving and particular nature of insolvency proceedings. The evolving nature of insolvency proceedings is illustrated by a clear shift from liquidation to reorganization. Modern insolvency proceedings are no longer (solely) focused on the liquidation of (the assets of) the debtor. Instead, across the European Union a trend can be witnessed whereby insolvency proceedings are used to reorganize (the enterprise of) the debtor. This shift has led to the introduction of all kinds of new insolvency proceedings, with different characteristics than traditional insolvency proceedings. The particular nature of insolvency proceedings relates to creditors (but also creditors between themselves) and debtors trying to resolve a financial and/or economic problem. The outcome of this process affects other stakeholders (in particular employees). This is the core of insolvency proceedings. Related to this core are a multitude of ‘related’ proceedings, which in principle exist autonomously from insolvency proceedings, but frequently arise in the context thereof.10

In order to understand the present, it is good to understand the past. Therefore, the structure of this paper is chronological. Three stages are distinguished. First, I briefly look at the situation before the Insolvency Regulation and the Brussels I Regulation. Secondly, I consider the relationship between the Brussels I Regulation and the Insolvency Regulation. Lastly, I examine the current situation.

PHASE 1: THE BRUSSELS CONVENTION

It is well-known that the 1968 Brussels Convention did not apply to ‘bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings’. These proceedings were not excluded from the scope of application because they were considered irrelevant for international business. Instead, the idea was to cover them with a separate instrument, taking into account the special nature of the matter and the profound differences between the Contracting States of the Brussels Convention, in particular with respect to the question of what actions or disputes fall within the jurisdiction of the court opening the insolvency proceedings.

INTRODUCTION

Fifty years ago the first European instrument in the fi eld of judicial cooperation in civil and commercial matters saw the light of day: the 1968 Brussels Convention on jurisdiction and enforcement of judgments. Its rules, as amended in 2002 by the Brussels I Regulation and in 2015 by the Brussels Ibis Regulation, very soon became the core of European Private International Law (PIL). Of all the instruments in this field, the ‘Brussels rules’ are most oft en applied by the national courts, as evidenced by the numerous preliminary rulings of the Court of Justice of the European Union (CJEU).

The purpose of the 1968 rules was ‘to strengthen in the community the legal protection of the people therein established’. The 1999 Tampere Council further explored this idea by introducing the concept of ‘one European Area of Justice’: an area where citizens can easily enter into cross-border relations and just as easily have access to judicial redress in case the relations go awry. The underlying idea is, with the risk of oversimplifying matters, that a Belgian citizen shopping in Brussels, Paris or Milan should always have the same degree of judicial certainty with regard to the competent court, the applicable law and the swift enforcement of a judicial decision.

Since then, ample use has been made of the new judicial basis inserted in the Treaty of Amsterdam, now Article 81 TFEU, that allows the European legislator to enact directly binding rules to strengthen this European judicial area. At present more than 20 regulations were adopted, which harmonize large parts of national PIL. More initiatives are planned, albeit of a less ambitious nature as the European legislator currently has been focussing on the consolidation and improvement of the existing instruments.

Needless to say that European PIL as it exists today is no longer a topic for the happy few. The European rules on jurisdiction, recognition and enforcement of judgments, on the applicable law or on judicial cooperation in civil, commercial and family matters have penetrated the day-to-day practices of most legal practitioners.

INNOVATIONS OF THE BRUSSELS IBIS REGULATION

THE TRANSITIONAL REGIME

Since 10 January 2015, the recast Brussels I Regulation (Brussels Ibis) has applied in all EU Member States (Article 80 Brussels Ibis) for proceedings initiated after that date. In practice, however, this date has not marked any major changes. One reason is found in the transitional regime of Article 66 Brussels Ibis. According to its first paragraph, the new Regulation only applies to proceedings which are initiated after this date. The more important provision is found in the 2nd paragraph which states that the new enforcement regime of Articles 36 ff . of the Recast only applies to enforceable titles which were obtained in proceedings under the new Recast. This provision protracts the application of the new regime considerably – enforcement cases under the new regime have not yet reached the courts in Member States where Articles 36 ff . of the old Brussels I Regulation are still being applied. Therefore, my contribution in this volume has a limited scope. It cannot address the new – and problematic – direct enforcement regime of the Recast because while practice in the EU Member States is now well underway, case-law interpreting the new Regulation has not yet reached us in earnest. Even so, the direct enforcement regime is arguably the most important change of the recast Regulation.

In the meantime, the German Federal Civil Court (Bundesgerichtshof/BGH) has sent a first preliminary reference to the Court of Justice of the EU (CJEU) which addresses direct enforcement under the Recast. The BGH referred several practical questions on the form in Annex I, to the CJEU, which demonstrate that the (complicated) German law on provisional enforceability is difficult to reconcile with the categories of the form. However, the preliminary reference demonstrates the practical difficulties of direct enforcement under the Brussels Ibis Regulation. Under the former regime, recognition proceedings permitted the adaptation of a foreign judgment to the specificities of the enforcement laws of the Member State of enforcement. Under the Recast, the form (Article 53 Brussels Ibis Recast) replaces the (individual) adaptation of a foreign judgment in exequatur proceedings. It remains to be seen whether the form in Annex I will be sufficiently sophisticated to replace the adaptation process.

INTRODUCTION

This chapter considers the ongoing negotiations of a Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters (hereafter, ‘the Judgments Project’) at the Hague Conference on Private International Law (hereafter, ‘the HCCH’) from the perspective of its complementarity to the Brussels I Recast Regulation, which today still stands as the main pillar of the 50 year-old (or young) European Private International Law.

Euphemistically put, the Judgments Project has known its ups and downs since it was proposed as a new item for intergovernmental negotiations to the HCCH in 1992. It is, at the time of writing, still uncertain what the outcome of the final negotiations will be. For the purposes of this paper, however, we will base ourselves on the 2018 Draft Convention, leaving the discussions about open issues aside. This paper aims instead at situating the Judgments Project, from the perspective of the EU, as a component of the construction of the EU Civil Justice legal framework. For that purpose, it provides a succinct overview of the scope and main features of the draft Convention that will hopefully emerge as the new off spring of the Judgments Project. To illustrate some of the draft Convention's main features, four different scenarios (based on real cases) are discussed. Finally, some predictions about the road ahead are made, based on the author's personal conviction that it is essential, for the international legal community as a whole and thus for the EU and the European citizens in particular, that the Judgments Project is crowned with success.

THE JUDGMENTS PROJECT AS A COMPONENT OF THE EU CIVIL JUSTICE POLICY

Prima facie, the Judgments Project may appear to be peripheral to the primary objectives of the EU in the area of private international law. The ‘judicial cooperation in civil matters’ (or ‘private international law’ in more standard terms) that the EU progressively develops pursuant to Article 81 TFEU (and its predecessors), has principally generated Regulations, Directives and other EU legislation directed to the proper functioning of the internal market. Given that one of that internal market's main goals is the free movement of goods, services and economically active persons within the territory of the EU, the internal dimension of the Civil Justice policy has received priority attention in the initial decades of its development.

My fellow authors of this conference handbook have zoomed in excellently on a number of topics relevant to the application of the ‘Brussels Regime’. My contribution offers a more bird's eye view on some of the grands courants of 50 years of European private international law (‘PIL’). Inevitably some of my comments may overlap with, hopefully confirm and equally hopefully contradict some of the comments made by my peers.

A SEA CHANGE. FROM UPHOLSTERED FURNITURE TO SHARIA DIVORCE

My institute co-organised the conference in March 2018, which led to current conference handbook. At the end of what was a stimulating and from my point of view also simply a fun day, my co-organisers handed me a bundle of past issues of the journal in which private international law papers had been published. Let me start my contribution by listing the papers that were published in the various issues handed to me. (These were not meant as a complete, exhaustive overview. I suspect the pile would have been too high.)

Marc Huysmans, supervised by prof. Koen Lenaerts (at the time the chair of private international law at the faculty) in 1989 wrote on insolvency in PIL. Th is paper included a comparative review of substantive insolvency in a select number of EU countries, followed by insolvency in Belgian European PIL. Th e latter focused on what was then the European Commission draft for a European Insolvency Convention.

In the same 1988–89 volume, Wouter Wils comparatively reviewed surrogacy between the US and Belgium, with a few hints at the difficulties private international law might raise in the discussion (the angle of the paper was mostly comparative family law). In the same issue, Geert Morris published the first part of a two part analysis of the 1980 Rome Convention on applicable law in contractual relations.

Hilde Jacobs in 1990–91 discussed the substantive conditions and the ‘formae habilitantes’ (the formalities required in the event of the sale of immovable property owned by minors), and Pascale Alerts and Margaretha Wilkenhuysen analysed related issues of guardianship and the sale of real estate belonging to foreign minors.