EU Shipping Law

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European Union law and shipping litigation: the “Brussels I” Regulation

A. Introduction

47.001 Inevitably, there is cross-border litigation in the shipping sector. The litigation can relate to issues as diverse as cargo claims, charter parties, collisions, contracts, injuries and even fatalities. This often means that there is a choice in a case between different jurisdictions. The choice between jurisdictions is primarily the choice of: (a) which jurisdiction will hear the case (i.e. the forum which will hear the dispute); and (b) which body of law will apply to the case (i.e. the governing law which will decide the dispute).1 This choice of legal system and law can be critical: making one particular choice could favour the plaintiff while a different choice could favour the defendant. Put another way, choosing the substantive and procedural legal regimes could determine the entire outcome of the case. This often leads to so-called “forum shopping” whereby potential litigants “shop” between different jurisdictions to find the one most favourable to their case. Often, there are skirmishes between the parties about resisting choices. The conflict of laws2 rules help to resolve some of the difficulties involved.3 The conflict of laws rules also help to ensure that claims are not only upheld but enforced as well. This book, and hence this chapter, concentrates only on selected European Union (“EU”) law aspects of the issue. Moreover, this chapter is necessarily brief as there is a great deal of information available in other more detailed publications on the topic.4

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47.002 Within the EU, there are special rules adopted (typically now5 in the form of regulations6) to minimise further the difficulties faced by litigants – this is done by the adoption of common rules which pre-determine choices. The principal instrument is now the so-called Recast Brussels I Regulation. This is Regulation 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.7 There had been other earlier measures including the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (as amended8)9 and the 1988 Lugano Convention (which extended the regime to the then six European Free Trade Association Member States). The current regime is based, in many ways, on Council Regulation 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters10 (which replaced the 1968 Convention) but Regulation 44/2001 had been amended a number of times so the regime is now embodied in the so-called Recast Brussels I Regulation which involved an updated measure to take into account some of the lessons learned from the operation of those measures over time.11 47.003 This chapter examines the Recast Regulation from the perspective of shipping12 only and therefore omits aspects of it which are irrelevant in a maritime context (e.g. provisions about wills, trusts and so on). 47.004 The background to the Recast Brussels Regulation (which entered into force on 10 January 2015) is set out, in part, in recitals 3–5 to the Recast Regulation:
  • “(3) The [European] Union has set itself the objective of maintaining and developing an area of freedom, security and justice, inter alia, by facilitating access to justice, in particular through the principle of mutual recognition of judicial and extra-judicial decisions in civil matters. For the gradual establishment of such an area, the Union is to adopt measures

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    relating to judicial cooperation in civil matters having cross-border implications, particularly when necessary for the proper functioning of the internal market.”

Recital 3 demonstrates the interconnectivity between issues such as the internal market and access to justice.

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