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ZUZANA JAHODNÍKOVÁ
–
MILOŠ OLÍK
CYIL 5 ȍ2014Ȏ
Given the fact that the CJ EU stands as a major link in the Union’s judiciary, it comes
as no surprise that the Court has taken an approach strictly in line with the principles and
rules laid down within the legal order of the European Union. In
Turner
89
the CJ EU held
that a court of an EUMember State cannot enjoin a party from the commencement and
continuation of proceedings in the courts of another Member State.
In the long term, private international law within the legal orders of EU Member
States addresses matters deemed to be the alpha and omega of cross-border jurisprudence
such as jurisdiction, applicable law, recognition and enforcement of judgements of a
foreign origin. Adopting the Brussels Regulation
90
has meant a substantial shift from
the fragmented and diversified
status quo
towards a harmonized approach leading to
the free movement of judicial decisions and the simplification of legal relations with
a foreign element. As a matter of EU law, EU Member States have to acknowledge
the existence of the Brussels Regulation that is establishing, in addition to Treaties,
well-known principles attributed to the aim of enhancing co-operation, such as
“equality”, “recognition”, and the “parity” of the courts active in the European Union
Justizverfassungsbund.
91
Since, most national laws provide specific rules on
lis pendens
between courts, it is
not difficult to make sense of the decision of the EU to bring an aspect of harmonization
to the multitude of national rules and enactments. The aim of strengthening the
lis
pendens
principle within the territory of the EU was one of the many incentives
which guided the thoughts of the establishment of the free movement of judicial
decisions. Opening the judicial sector to enhanced co-operation was accomplished
by the adoption of Council Regulation (EC) No 44/2001 on jurisdiction and the
recognition and enforcement of judgments in civil and commercial matters.
92
The
notion of
lis pendens
finds its expression in Article 27, which enjoins national courts
to stay a second proceeding or to decline jurisdiction if the jurisdiction of the first
Court is established. In also finds its expression in conjunction with Article 28, which
postulates that in the case when related actions are pending in the courts of different
Member States, any court other than the court first seized may stay its proceeding.
Both standard clauses allow for and, indeed, reckon with the cessation of parallelism
for the sake of uniformity and avoidance of reciprocally conflicting decisions.
All of these factors only marginally affect the status and conduct of arbitral
proceedings since the Regulations, as was the case with its predecessor – the Brussels
89
Judgement of the Court of 27 April 2004,
Gregory Paul Turner v Felis Fareed Ismail Grovit, Harada Ltd
and Changepoint SA
, C-159/02, 2004 I-03565.
90
Chapter 1 (Scope), Article 1, para. 2 (d) Regulation Brussels I.
91
The term used to describe the cooperation between national courts and ECJ within a jurisdictional
circle of courts. (Europäischer Justizverbund) in I. Pernice, “
Das Verhältnis europäischer zu nationalen
Gerichten im europäischen Verfassungsbund : Vortrag, gehalten vor der Juristischen Gesellschaft zu Berlin am
14. Dezember 2005“
, (De Gruyter Recht, 2006), p. 26.
92
Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters.