Dominelli on Brussels I bis Regulation and US Jurisdiction
Stefano Dominelli (Univ. of Genova) has authored ‘Regolamento Bruxelles I bis e US jurisdiction in personam: riflessioni e proposte su condivisioni valoriali, influenze e osmosi di metodi’ (Editoriale Scientifica, Napoli, 2025). The volume, in Italian (with the conclusive chapter also translated in English) is freely accessible online. He has shared the following presentation of his book.
The aim of the book is to carry out a reading of the Brussels I bis Regulation and of US approaches to jurisdiction in order to develop a comparative assessment that allows to advocate, de iure condendo, for a slow convergence of methods and solutions.
The approach is novel, in that it changes the traditional perspective of the analysis: whereas continental legal traditions are in general juxtaposed by outlining differences in methods and specific solutions, the work seeks to determine the extent to which each legal system does not hold true to its own conceptual starting points. A conjunct reading of both legal orders in light of their respective ‘failures’ to implement their fundamental values, such as predictability, and fairness and justice, makes it possible to identify common ways of internal development (both systems are characterised as being functional-experimentalist in nature) and to detect how specific solutions have converged over time at least concerning general jurisdiction in personam,
The work starts from a classic contraposition between continental and US approaches. By intentionally exaggerating the differences between the two models, it is recalled how continental European legal traditions seek to develop certain, rigid, and predictable rules, as opposed to post US-conflict of laws revolution approaches grounded on considerations of fair play and justice. The introduction distinguishes between fundamental core values on jurisdiction, often implied in each system, which are supposed to be implemented by each rule, and ‘other fundamental principles’ (such as proximity, party autonomy, and others) that can be inferred from each rule, or group of rules. The introduction sets the research question, that is whether rules on jurisdiction in contractual matters and in torts implementing specific policies are also coherent with the fundamental core values that is supposed to shape any rule. The book argues this is not always the case.
By exploring the law in action, Chapter 2 argues that the values of certainty of law and rigidity of rules on jurisdiction in the Brussels I bis Regulation are not always effectively pursued by single provisions. Or, in other words, that other values may take the lead in determining jurisdiction. Whereas Article 4 of the Brussels I bis Regulation seeks to ensure predictability of the competent court, the effective modalities for such identification do not exclude uncertainties or multiple domiciles. Furthermore, the circumstance that the head of jurisdiction can be re-localised also in perspective of litigation, contributes to the erosion of subjective certainty of law. Even more so, the number and importance of special and alternative heads of jurisdiction, that according to Recital 15 of the Brussels I bis Regulation should ‘simply’ complement the general rule, seem to confirm that the general rule must indeed be subject to more flexible approaches. Exclusive fora (expressing State interests in jurisdiction), party autonomy (expressing the interests of State to avoid positive and negative conflicts of jurisdiction), and alternative heads of jurisdiction (expressing an interest in proximity also aimed at the sound administration of justice) are proof of the fact that the Court of Justice of the European Union is willing to take chances to argue that the actor sequitur forum rei solution, conceptualised as being be the primary rule to pursue the ‘constitutional goals’ of the legal framework, alone taken, is not always adequate.
Chapter 3 reconstructs the development of US approaches in respect to jurisdiction over out-of-States defendants. The analysis spans from a territorial conceptualisation of jurisdiction in Pennoyer to the introduction of the minimum contacts theory in International Shoe Co., allowing exercise of jurisdiction over out-of-State defendants so long the court has certain minimum contacts such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice”. Both elements of the test established in International Shoe Co., that of fair play and substantial justice, are contextualised in light of the most recent case law, amongst which Daimler, where it is argued that the relationship between such diverse elements condensate and crystallise in the ‘being-at-home’ test for general jurisdiction, not distant – content wise – from Article 4 of the Brussels I bis Regulation. Albeit fair play and justice may still play a role in justifying specific jurisdiction established by domestic long arm statutes over out-of-State defendants, the Chapter seeks to highlight how the International Shoe Co. test has led to backlashes in the case law as a reaction to the minimum contacts theory for general jurisdiction and, consequently, the making of solutions that are more certain and possibly rigid in their content.
Chapter 4 rationalises the findings, warning, though, that any assessment made on a different legal system should not be carried out in light of values that are alien to that system. It is argued that European rules of international civil procedure in contracts and torts in the Brussels I bis Regulation are not immune to forms of flexibilisation, suggesting that flexibility, on the one hand, and the rigid predetermination of rules, on the other hand, are not necessarily self-excluding values even in the Brussels I bis regime despite its declared aim to promote certainty and predictability. It is also argued that the tendency to flexibility, albeit being limited in nature, shows how much rigidity of provisions leads to backlashes and attempts to shift towards other models and approaches. Similarly, with reference to solutions adopted by US Sovereign Sister States, it is argued that a pure model based on considerations of fair play and substantive justice in establishing jurisdiction viz out-of-States defendants has also to reactions. Leaving too much room for interpretation on courts has determined the development of more predictable tests on jurisdiction, such as the being-at-home rule, that are not significantly dissimilar to more typically European solutions. In this sense, it is argued that systems based on considerations of rigidity and predictability of rules are ‘contaminated’ by flexibility considerations, and – the other way around – systems permeated by considerations of fair play have been themselves ‘contaminated’ by considerations of predictability.
Building upon the conclusion that both legal orders adopt specific solutions that are to some extent inconsistent with the assumed fundamental values of their respective legal framework (certainty and predictability on the one side, and fair play and substantial justice, on the other side), and that such systems are to some extent converging at least in part, the reading of such failures leads to the discovery of a fundamental principle that is common to both of them: that of the necessity for the jurisdiction to have some connection with the case. It is argued that this principle of connection, rather than others, is to be identified in light of statutory provisions and the case law as being the fundamental core value on jurisdiction that must necessarily be implemented by any rule and to which each rule must abide to. Even though, it is admitted, the two legal systems still diverge on the intensity of an objective or personal connection that might justify general or specific jurisdiction over out-of-State defendants.
The suggestion that both systems have the same fundamental aim paves the way to a reasoning on possible cross-fertilisation in terms of methods and solutions. If both purse the same aim (that of connection), single approaches of one legal system should not be necessarily and aprioristically labelled as being unacceptable in the other. However, the author advises for caution as the discovery of a common fundamental principle is per se not sufficient to ensure successful cross-fertilisation of methods sic et simpliciter. Local legal traditions (such as the strong preference for rigid rules in the Brussels I bis Regulation) cannot be ignored and contribute to the success or failure of any cross-influence.
Chapter 4 puts the idea of the possible transplant of solutions to a test, dwelling on whether something like the minimum contacts theory may – at least to some extent – be developed in the context of the Brussels I bis. The case of Due Diligence Directive is taken as a case study. It is argued that a ‘pure’ minimum contacts theory would never fit continental approaches; yet, a proper adaptation and the development of a specific rule which may translate in clearer terms the conditions to establish (and predict) specific jurisdiction, may theoretically be acceptable in the end even if the contact (such as revenues in a Member State of the European Union) is not a typical one under the European local tradition. In this sense, according to the author, a ‘predictable’ rule not expressing any connection between the jurisdiction and the case would have to be considered methodologically unacceptable. On the contrary, a rather flexible head of jurisdiction based on non-traditional connecting factors should at least not be excluded a priori if it does indeed express a connection between the case and the jurisdiction.
The work concludes by noting that despite the reconstruction of a fundamental common principle which may to some extent bring the two systems closer, significant divergencies still remain. The book takes the forum non conveniens doctrine as an example, suggesting that even though its dogmatic compatibility with the principle of connection should not be excluded a priori from the perspective of the Brussels I bis Regulation, as it would be functional to ensure effective connection in the single case, the different ways the two legal systems conceptualise exercise of jurisdiction does still strongly influence local legal cultures, up to the point that a generalised introduction of such an approach in the context of the Brussels I bis Regulation seems unlikely for the time being.