Coordinamento e primato tra giurisdizioni civili nella prospettiva della revisione del Regolamento (CE) n. 44/2001

Abstract

The paper deals with some of the critical features of the (EC) regulation no. 44/2001 of 22 December 2000 (Brussels I), as they emerge from the case law of the Court of Justice of the European Union and, more generally, from the practical operation of the regulation within the member States of the European Union. A special attention is paid, in the analysis, to the rules aimed at assuring the coordination of legal proceedings initiated in different States. The importance of these rules, although traditionally regarded as lesser if compared with the pillars of the regulation (i.e. the rules regarding jurisdiction and the recognition and enforcement of foreign judgments), should in fact be reassessed. Having in mind the revision of the Brussels I regulation, started with the publication of the Commissions Green paper of 21 April 2009, the essay focuses in particular on the difficulties relating to the rule on lis alibi pendens (and the interplay between such rule and the so called torpedo actions), the legal regime of forum selection clauses, the relationship between the regulation and arbitration, the treatment of preliminary questions and related actions, and the rules regarding provisional and protective measures (especially in connection with the need of coordinating such measures with the decisions that another court, entitled to hear the merits of the dispute, has rendered or is likely to render on the matter). Based on the critical examination of these difficulties, the article provides a reasoned analysis of the solutions envisaged so far by authors and institutions within the framework of the debate surrounding the reform of the regulation, adding remarks and proposals.