TY - JOUR

T1 - The enforcement of settlement and jurisdiction agreements and parallel proceedings in the European Union

T2 - the Alexandros T litigation in the English courts

AU - Ahmed, Mukarrum

PY - 2015

Y1 - 2015

N2 - This article examines the private law enforcement of English settlement and jurisdiction agreements where pre-emptive parallel proceedings have been commenced in the courts of another EU Member State. It will be argued that in The Alexandros T, the UK Supreme Court adopted a narrow and instrumental “mirror images” interpretation of the “same cause of action” issue in Article 27 of the Brussels I Regulation which allowed the English and the Greek proceedings to continue in parallel. In cases where the strict tripartite test of Article 27 is not met, Article 28 with its discretionary power to stay in case of related actions is available as a more flexible alternative. It will be argued that the exercise of the discretion to stay proceedings under Article 28 of the Brussels I Regulation was legitimately denied effect in order to accord deference to jurisdictional party autonomy. The Court of Appeal's decision clarifying that the claims for declarations and damages for breach of exclusive jurisdiction agreements are not in breach of EU law will not be the final word on this contentious and as yet unresolved issue. Any argument supporting the enforcement of the private law rights and obligations of the parties to the jurisdiction or settlement agreement may be deemed by the CJEU as necessarily infringing the principle of effectiveness of EU law (effet utile) and the principle of mutual trust which animates the multilateral jurisdiction and judgments order of the Brussels I Regulation.

AB - This article examines the private law enforcement of English settlement and jurisdiction agreements where pre-emptive parallel proceedings have been commenced in the courts of another EU Member State. It will be argued that in The Alexandros T, the UK Supreme Court adopted a narrow and instrumental “mirror images” interpretation of the “same cause of action” issue in Article 27 of the Brussels I Regulation which allowed the English and the Greek proceedings to continue in parallel. In cases where the strict tripartite test of Article 27 is not met, Article 28 with its discretionary power to stay in case of related actions is available as a more flexible alternative. It will be argued that the exercise of the discretion to stay proceedings under Article 28 of the Brussels I Regulation was legitimately denied effect in order to accord deference to jurisdictional party autonomy. The Court of Appeal's decision clarifying that the claims for declarations and damages for breach of exclusive jurisdiction agreements are not in breach of EU law will not be the final word on this contentious and as yet unresolved issue. Any argument supporting the enforcement of the private law rights and obligations of the parties to the jurisdiction or settlement agreement may be deemed by the CJEU as necessarily infringing the principle of effectiveness of EU law (effet utile) and the principle of mutual trust which animates the multilateral jurisdiction and judgments order of the Brussels I Regulation.

KW - The Alexandros T

KW - private international law

KW - European Union civil procedure

KW - Brussels I Regulation

KW - parallel proceedings

KW - lis pendens

KW - jurisdiction agreements

KW - settlement agreements

KW - damages

KW - mutual trust

KW - principle of effectiveness

KW - effet utile

KW - Brussels I Recast Regulation

U2 - 10.1080/17441048.2015.1104831

DO - 10.1080/17441048.2015.1104831

M3 - Journal article

VL - 11

SP - 406

EP - 443

JO - Journal of Private International Law

JF - Journal of Private International Law

SN - 1744-1048

IS - 3

ER -