Abstract and Keywords
The harmonization of private international law in Europe, especially in the area of jurisdiction, is problematic and controversial. The interpretation of Regulation 44/2001 by the ECJ, as the decisions in Owusu, Turner, West Tankers, and Gasser confirm, and the design of its successor, Regulation 1215/2012, appear constrained by considerations secondary to achieving the best outcome and to creating a successful regime for the regulation of international commercial disputes. Driven by the objectives of certainty and uniformity, and the overriding goal of avoiding irreconcilable judgments, the EU jurisdiction regime often fails to achieve procedural efficiency and justice, by encouraging forum shopping and ignoring the realities of cross-border litigation, at least in commercial cases. This causes unease amongst practitioners and those bearing the risk of litigation. It undermines the confidence of private international lawyers in the harmonization project, and has prompted a flight to arbitration, which remains unregulated by the EU regime.
Keywords: harmonization of private international law, realities of cross-border litigation, EU jurisdiction regime, certainty, uniformity, procedural efficiency, irreconcilable judgments, forum shopping, Regulation 1215/2012, Regulation 44/2001
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