The applicability of Regulation (EU) No. 1215/2012 of December 12, 2012, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I bis Regulation) is conditional on the existence of a foreign element making the dispute cross-border.
In light of this requirement, the Court of Justice of the European Union analysed whether the Brussels I bis Regulation could be applied to a dispute between two parties residing in the same Member State, who had agreed in their contract on the jurisdiction of the courts of another Member State.
To answer this question, the Court considered the definition of a cross-border dispute. Two main criteria can be identified from this analysis:
- At least one of the parties must be domiciled or habitually resident in a Member State other than the Member State of the court seized of the matter; and
- The situation of the dispute concerned must be such as to raise questions relating to the determination of courts’ jurisdiction in the international order.
The CJEU concludes that the existence of a clause conferring jurisdiction to the courts of a Member State other than the one in which the contracting parties are established is sufficient to make their dispute cross-border.
Parties to an apparently purely domestic agreement can therefore give in advance to a potential dispute an international flavour by adopting a jurisdiction clause triggering the application of the Brussels I bis Regulation and enabling them to escape domestic law restrictions on territorial jurisdiction.
