The Commission proposes abolishing exequatur proceedings; these require that a judgment (from another EU member state court) be declared enforceable or be registered in the country of enforcement before enforcement steps can be taken against the judgment debtor’s assets.

If adopted, the proposal would allow judgment creditors to proceed with the immediate enforcement of an EU judgment across the EU under national enforcement laws. Similar simplified processes already exist for uncontested or small claims under the Enforcement Order Regulation (805/2004/EU) and the European Small Claims Procedure (Regulation 861/2007/EC).

The proposal contains some limited safeguards for the judgment debtor. The debtor may (only) challenge enforcement proceedings by either applying for a review of the judgment in the originating court (if the judgment was entered in default and the debtor was not served in sufficient time), or by objecting to the enforcement in the enforcing courts (if there is a conflicting judgment or fundamental principles underlying the right to a fair trial have been breached).

The onus will be firmly on the debtor to stop the enforcement of the judgment, and there appears to be no uniform requirement to ensure that the debtor is served with the judgment or otherwise warned of imminent enforcement measures before enforcement.

However, this simplified process will not apply to judgments in defamation cases and compensatory collective redress proceedings.

The Commission is proposing to extend most of the jurisdiction rules in the Brussels Regulation to defendants domiciled outside the EU. The important point is that these rules are to replace national rules on jurisdiction. This is a radical proposal which already triggered wide-ranging opposition when it was first raised in the green paper. It has also been opposed by the European Parliament. If adopted, the proposal would mean a loss of the grounds on which EU member state courts are currently able to assert jurisdiction over non-EU defendants.

For example: currently, English courts assert jurisdiction based on the various "gateway" provisions set out in Practice Direction 6B of the Civil Procedure Rules, including in a contract claim where the contract was made or breached in the jurisdiction or is governed by English law. The Commission's proposal would result in a loss of these jurisdiction grounds, and would only look to the place of performance of the obligation in question when determining which court should have jurisdiction. This would mean that a claimant who has been able to establish jurisdiction on the basis that a contract was made in England, or is governed by English law, might no longer be able to bring proceedings in England if the contract is, for example, to be performed in Russia.

A further, often used, English jurisdiction rule allows a claimant to bring a non-EU co-defendant within the English jurisdiction where that person is a necessary or proper party to a claim brought against an "anchor" defendant. The current drafting of the proposal suggests that this rule will be abolished and that the equivalent rule in the Brussels Regulation will continue to apply only to co-defendants domiciled in an EU member state (unless proceedings against the non-EU defendant can be brought within the meaning of "third party proceedings"). This would severely limit the ability of a claimant to bring potential non-EU co-defendants into English proceedings.

To make up for the loss of national jurisdiction rules, the proposal provides for two new grounds for jurisdiction over non-EU defendants: where the defendant has assets in a member state (and the dispute has (another) sufficient connection to the member state); or where there is no forum available which would guarantee a fair trial (and the dispute has a sufficient connection to the chosen member state).

The proposal also raises the serious question of whether it would result in English courts no longer being able to consider the appropriateness of the forum when determining whether to assert jurisdiction over a non-EU defendant, or whether to stay proceedings in favour of a more appropriate forum (the forum non conveniens principle).

The European Court of Justice (ECJ) has already ruled in Owusu v Jackson that forum non conveniens considerations do not apply to EU defendants (Case C-281/02) (see News brief "Regulating jurisdiction: English courts' discretion is curtailed",). The extension of the jurisdiction rules to non-EU defendants may extend this controversial decision as well.

The Commission proposes a welcome (and expected) strengthening of exclusive jurisdiction agreements; namely, where there is an exclusive jurisdiction clause in favour of a member state court, court proceedings brought in another member state court must be stayed until the chosen court has ruled on its jurisdiction. This would go some way to defusing so-called Italian torpedo actions brought in breach of a jurisdiction clause and aimed at avoiding the chosen court or slowing down proceedings.

However, the proposal does raise the question of whether there should not be a deadline within which a party objecting to proceedings brought in an unnamed court should bring proceedings in the chosen court. Also, the proposal includes a choice of law rule which provides that the validity of the jurisdiction agreement be determined by the law of the country of the chosen court. This may lead to peculiar results where the contract is governed by, for example, English law with a French jurisdiction clause. Currently, under English private international law, a jurisdiction clause will normally be governed by the same law governing the contract containing the clause.

It will come as a relief to the arbitration community that the Commission has abandoned its suggestion to bring arbitration (partially) within the scope of the Brussels Regulation. Instead, the proposal is restricted to neutralising the effects of the ECJ’s much-criticised decision in (Allianz SpA v West Tankers Case C-185/07).

The proposal requires a member state court to stay its proceedings where there is an arbitration agreement and either the arbitral tribunal or the courts of the member state at the "agreed or designated" seat have been seised to determine the existence, validity or effects of an arbitration agreement. Although the rule does not reverse the prohibition on anti-suit injunctions (as suggested by the European Parliament), it does assist arbitration agreements and would discourage the bringing of torpedo actions in breach of arbitration agreements.

The proposal will now go through the ordinary legislative procedure which requires buy-in from both the EU Council and the European Parliament. This process is expected to take two to three years.