Brussels I bis Applies to Pre-Brexit Choice of a Member State’s Court No Matter the Ties of the Case with the UK

In Cabris Investments, a case decided on 9 October 2025, the Court of Justice ruled on the interpretation of Article 25 of Regulation No 1215/2012 on jurisdiction and the recognition and enforcement of judgments (Brussels I bis).

Article 25 is concerned with choice-of-court agreements. It applies where the parties to a dispute, “regardless of their domicile”, have agreed to confer jurisdiction on “a court or the courts of a Member State”. If the agreement complies with the formal requirements set out in Article 25, then the court or courts chosen “have jurisdiction”. Such jurisdiction is “exclusive unless the parties have agreed otherwise”.

The Facts of the Case and the Questions Referred to the Court of Justice

On 6 May 2020, a consultancy contract was concluded between two companies established in the UK. The agreement featured a clause whereby the Commercial Court in Vienna was to have jurisdiction over any disputes arising out of or in connection with the contract. In 2023, one of the two companies sued the other in Vienna alleging that the latter had failed to fulfill its obligations under the contract.

The defendant challenged the jurisdiction of the Commercial Court, arguing that Article 25 of the Brussels I bis Regulation did not apply, given that, as a result of Brexit, the UK ceased to be bound by EU law on 31 December 2020, when the transition period contemplated in the Agreement concerning the withdrawal of the UK from the EU came to an end. In the opinion of the defendant, this made the choice-of-court clause inoperative.

The Commercial Court had doubts about the applicability of Article 25 of the Brussels I bis Regulation and sought clarification from the Court of Justice, noting  that Recital 13 of the Regulation provides that “[t]here must be a connection between proceedings to which this Regulation applies and the territory of the Member States”, and that, according to Recital 14, “[a] defendant not domiciled in a Member State should in general be subject to the national rules of jurisdiction applicable in the territory of the Member State of the court seised”.

The Court’s Ruling

The Court held in Cabris Investments that Article 25 of the Brussels I bis Regulation covers a situation in which two parties to a contract domiciled in the UK agree, during the transition period, on the jurisdiction of a court of a Member State to settle disputes arising from that contract, even where that court is then seised after the end of the said period.

The Court decided that the case would be determined without a submission from the Advocate General. As stated in Article 20 of the Statute, the Court may do so where it considers that the case “raises no new point of law” (doubts on the appropriateness of this choice have been expressed by Michael Wilderspin in a comment to a report on the ruling by Geert van Calster on LinkedIn).

On the merits, the reasoning of the Court revolves around four main findings.

First, a choice of court agreement has no legal effect for so long as no judicial proceedings have been commenced. The applicability and effects of such an agreement must accordingly be assessed as at the date on which the legal proceedings are brought, and from the standpoint of the court seised.

Second, the fact that Article 25 of the Brussels I bis Regulation applies “regardless of the domicile of the parties” indicates that the rule that it lays down is not subject to any condition relating to the domicile of the parties, or of one of them, in the territory of a Member State. In this respect, Article 25 differs from Article 23 of Regulation No 44/2001 (the Brussels I Regulation), which, for its part, required, for the application of the rule of jurisdiction based on an agreement conferring jurisdiction, that at least one of the parties to that agreement be domiciled in a Member State.

Third, the system of jurisdiction established by the Brussels I bis Regulation is internal to the EU and pursues EU-specific objectives, such as the proper functioning of the internal market and the establishment of an area of freedom, security and justice. Respect for the autonomy of the parties, as stated in Recital 14, is among the concerns which the Regulation seeks to address. Thus, unlike the rule laid down in Article 4, according to which jurisdiction lies generally with the courts of the Member State where the defendant is domiciled, Article 6(1) of that regulation provides that, if the defendant is not domiciled in a Member State, jurisdiction is, in each Member State, to be determined by the law of that Member State. Reliance on domestic rules, however, is explicitly made subject to the application of certain provisions of the Regulation itself, including Article 25 thereof. Consequently, a situation in which the defendant is not domiciled in a Member State, but the contractual parties have agreed that a court or courts of a Member State are to have jurisdiction to settle their contractual disputes, falls under Article 25, and the rules of jurisdiction of the law of the forum have no role to play.

Fourth, while it is true that a situation must have an international element to come within the scope of the Brussels I bis Regulation, the Court of Justice has already asserted (notably in Owusu) on various occasions that the latter requirement is met where the case is exclusively connected with a State outside the EU. In addition, as clarified in Inkreal, a situation in which the parties to a contract, who are established in the same Member State, agree on the jurisdiction of the courts of another Member State, has an international element, even if that contract has no further connection to the other Member State. By analogy, the Court added, the existence of an agreement conferring jurisdiction on the courts of a Member State, even though the contracting parties are domiciled in a third State, raises a question relating to the determination of the international jurisdiction of the courts and that such a situation therefore has the necessary international element.

The applicability of Article 25 in the case at issue, the Court finally observed, is consistent both with the objectives pursued by the latter provision, namely to respect the autonomy of the parties and to enhance the effectiveness of exclusive choice-of-court agreements, and with the broader objective of the Brussels I bis Regulation to improve legal certainty. The proposed reading contributes to preventing, in the Member States, the conflicts of jurisdiction that could arise if the situation were governed by the national rules of private international law of the Member States. Concurrently, it minimises the possibility of concurrent proceedings and averts the risk of irreconcilable judgments.

A Rather Plain Ruling, in the End

The conclusion reached by the Court of Justice in Cabris Investments is persuasive.

Choice of court agreements display a dual nature. They are essentially designed to produce procedural effects, but are normally embodied in contracts the purpose of which is to shape the parties’ substantive relationship.

Admittedly, situations exists where such a duality is a source of uncertainties. However, this is not necessarily the case in circumstances such as those at the origin of the Court’s ruling.

Basically, the issue was whether the Commercial Court in Vienna was bound, in the assessment of its jurisdiction, by the rule laid down in Article 25. This is a procedural question, which the Commercial Court had no option but to approach from the standpoint of the rules applicable in Austria at the time when the question arose, that is, in 2023, when the Commercial Court itself was seised of the proceedings. The applicable rules were the rules of the Brussels I bis Regulation, including, specifically, Article 25, as the conditions of applicability set out therein were all met in the circumstances.

Indeed, the Brussels I bis Regulation had then ceased to be effective in the UK. But this has implications for the UK (according to Article 67 of the Withdrawal Agreement, the Regulation’s rules on jurisdiction apply in the UK to proceedings instituted before the end of the transition period), not for Austria. This means that despite Brexit, the choice of an Austrian court, where it complies with Article 25, produces the two effects that a choice of court is meant to bring about: it confers jurisdiction on the chosen Austrian court and, unless the parties agreed otherwise, prevents the courts in the other EU Member States from asserting their jurisdiction over the case.

All in all, Cabris Investments confirms that the applicability of the Brussels I regime does not depend, as such, on the domicile of the defendant being in a Member State of the EU. The Court had already made clear in the Lugano Opinion that the application of the domestic rules of the individual Member States to proceedings brought against non-EU domiciliaries occurs within the framework of the jurisdictional system of the Brussels I regime itself, thereby indicating that the latter proceedings do not fall outside that regime: through the rule now enshrined in Article 6(1) of the Regulation, the Brussels I regime “resolves [the issue of jurisdiction arising from the said proceedings] by reference to the legislation of the Member State before whose court the matter is brought” (para 148).

The rules of the Regulation whose operation is left untouched by Article 6(1), such as Article 24 (on exclusive jurisdiction) and Article 25, both of which apply “regardless of the domicile of the parties” cannot be labelled as “exceptional”. The fact that they apply irrespective of whether the domicile of the defendant is in a Member State of the EU, or not, does not amount to a departure from a basic rule, for the simple reason that the Brussels I regime, when it comes to the applicability of its jurisdiction-conferring rules, does not generally distinguish between EU and non-EU defendants.

All proceedings, whether brought against EU or non-EU defendants, are subject in Member States to the Brussels I regime, provided  they come with the latter’s material and temporal scope. The domicile of the defendant may rather have an impact on the way in which the issue of jurisdiction is to be dealt: while some provisions apply regardless of the domicile of the defendants (or the parties to the proceedings), such as Articles 24 and 25, others apply only in litigation against EU domiciliaries (Articles 4, 7, 8, etc.), and others still (Article 6, with its referral to domestic rules) are only at play where the case is brought against a non-EU defendant.

What Role, if Any, for the Hague Choice of Court Convention in the Circumstances?

In an interesting post published a few days ago on Conflictoflaws, Salih Okur expresses surprise at the fact that, in Cabris Investments, the Court of Justice failed to assess the applicability of the Hague Convention of 30 June 2005 on exclusive choice of court agreements, which is in force for both the UK and the EU.

Article 216(2) of the TFEU entails that the Convention takes precedence over the Brussels I bis Regulation in cases falling within the scope of both texts. The Convention, however, comes with a disconnection clause in Article 26(6)(a) whereby, put shortly, the Regulation prevails over the Convention, in the Member States of the EU, where none of the parties is resident in a Contracting State that is not also a Member State of the EU. Since the proceedings before the Commercial Court in Vienna concerned two UK companies, the Convention, had it been applicable to the case, would have ultimately enjoyed priority over the Regulation.

Incidentally, I am assuming here that the relevant point time to determine whether a Contracting State is also a Member State of the EU should be the moment when the proceedings were instituted, not the moment when the agreement was made: note that, in the circumstances, the choice-of-court agreement was made when the UK was bound by EU law, including the international  conventions in force for the EU, whereas the lawsuit in Vienna commenced when the UK was bound by the Hague Convention by virtue of the instrument of accession it deposited on 28 September 2020. The matter cannot be further discussed here.

That said, Salih Okur observes in his post that the case did not fall within the scope of application of the Hague Convention, for it failed to meet the requirement of internationality set out by the Convention. In fact, the latter instrument only applies to “international cases” which, for the purposes of jurisdiction, means, according to Article 1(2), all cases “unless the parties are resident in the same Contracting State and the relationship of the parties and all other elements relevant to the dispute, regardless of the location of the chosen court, are connected only with that State”.

This is a fair point, although, to be precise, the Court of Justice contented itself with noting that, in the circumstances, aside from the jurisdiction clause, there was “no apparent link between the parties to the main proceedings and the Republic of Austria” (emphasis added), without specifying whether all the other “elements relevant to the dispute” were also tied to the UK alone.

Had the case been international within the meaning of Article 1(2) of the Convention, the Commercial Court in Vienna would have been required to resort to the Convention, rather than the Regulation, to assess the validity and the effects of the jurisdictional clause. Arguably, the treatment of the clause would have then been largely the same as under the Brussels I bis Regulation. Both texts provide for the enforcement of choice-of-court agreements concluded in writing, where they purport to confer exclusive jurisdiction to settle a dispute over a commercial contract on a court, or the courts, of a State bound by such texts, as it was the case in the circumstances.

Whether Brexit “Revived” the 1968 Brussels Convention Remains Unanswered

In its order for referral the Commercial Court in Vienna asked the Court of Justice to clarify how the matter should be dealt if Article 25 of the Brussels I bis Regulation were to be considered inapplicable, including whether the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters ought to be deemed applicable, “revived” as a result of Brexit. The positive answer provided by the Court of Justice to the question regarding the applicability of Article 25 made the issue moot.

It is hard to see on what grounds such a revival could be asserted under the applicable rules of the law of treaties. Be that as it may, those wishing to learn about the views of the Court of Justice on the matter have no option but to wait until another occasion arises.