chapter  7
46 Pages

Autonomy and supporting measures in Europe

The previous chapter shows that there are various instruments to protect party autonomy. This chapter examines the effect of these instruments in the regime where judicial cooperation exists. Applying common law measures to support jurisdiction and arbitration agreements is challenged in the European Union. EU jurisdiction rules are harmonized in the Brussels I Regulation. Since the majority of the EU Member States are civil law countries, the European jurisdiction rules follow the civil law tradition and greatly restrict the discretionary power of a court.2 The Brussels I Regulation does not provide any express terms to incorporate forum non conveniens and anti-suit injunctions in its regime. Instead, the civil law concept of lis pendens has been adopted.3 The ECJ has demonstrated a clear attitude in a number of cases that these common law instruments cannot be used within the Brussels regime.4 This restriction not only applies to jurisdiction agreements, but also extends to arbitration agreements.