Benvenuti on Jurisdiction over Defendants Domiciled in Non-EU States

Edoardo Benvenuti, a post-doc researcher at the University of Milan, has provided the following presentation of a book he authored, entitled ‘Giurisdizione in materia civile e commerciale nei confronti di convenuti domiciliati in Stati terzi e interessi materiali dell’Unione europea’ (Jurisdiction in Civil and Commercial Matters over Defendants Domiciled in Third States and the Substantive Interests of the EU), published by Wolters Kluwer in the series of monograph associated with the Rivista di diritto internazionale privato e processuale in 2025.

For some time now, there has been a tendency on the part of the European Union legislator to adopt substantive, uniform, or harmonized legal instruments intended to have an effect even on situations that have significant links with third States. This phenomenon cannot be defined in unequivocal terms, as it encompasses situations that differ in terms of how this ‘projection’ towards the outside world operates, but which can be traced back to the concept of ‘extraterritoriality’.

In certain cases, defining the scope of application of the Union’s substantive private law in these terms enhances equal conditions for access to the internal market, including through the establishment of uniform standards for the protection of human rights that are binding on those operating within it, regardless of where their production activities take place.

The inherently cross-border nature of the phenomena that these substantive rules are intended to regulate determines the immediate relevance of private international law rules as instruments capable of contributing to their practical implementation. However, such instruments do not generally contain rules of private international law in the strict sense, sometimes limiting themselves to evoking, more or less explicitly, the overriding mandatory nature of the rules contained therein, the effective implementation of which depends, in any case, on the existence of a competent court within the European Union.

Starting from these premises, the book reflects on the scope of jurisdiction of the courts of Member States, beginning with the concept of jurisdiction and its meaning at the intersection between public international law and private international law. The examination of any limits on the exercise of civil jurisdiction then continues by analysing the possible impact of human rights protection requirements on its exercise. In this perspective, particular importance is attached to the rules protecting access to justice, which are increasingly being valued in terms of their effectiveness, as can be seen, for example, from the recent decision of the International Court of Justice regarding the obligations of States in respect of climate change. It is true that in 2018, the Grand Chamber of the European Court of Human Rights ruled that there is no obligation for States to open their courts based on universal jurisdiction and forum necessitatis in cases of serious human rights violations. However, the obligations to ensure effective private enforcement instruments in certain areas could suggest, if not impose, a more flexible approach to determining the exercise of civil jurisdiction.

Based on these premises, the study therefore examines the scope of application of the Brussels I-bis Regulation and the residual role that this instrument assigns to jurisdictional grounds provided for under the domestic law of the Member States. This allocation does not always lead to outcomes that are fully consistent with the definition of EU substantive law in “extraterritorial” terms.

It is well known that the Brussels I-bis Regulation generally applies only to defendants domiciled in Member States, while only a few —albeit significant— provisions extend to defendants domiciled in third States. These exceptions reflect important policy choices, as they are designed to ensure the effective protection of interests that are also protected at the level of EU primary law. However, outside these limited cases, access to justice in the Union is governed by the jurisdiction rules of the Member States, which vary in scope and do not guarantee equal outcomes.

Furthermore, although the Brussels I bis Regulation gives greater scope to relations with third States than the Brussels I Regulation and the 1968 Brussels Convention, in particular by establishing a regime for lis pendens and related action with proceedings pending in third States, many aspects concerning coordination with such proceedings are governed by the national rules of the Member States. This circumstance does not ensure uniform and consistent outcomes throughout the Union.

It is also in light of these assumptions that a revision of the Brussels I bis Regulation should reconsider the possibility of extending the scope of the uniform rules on jurisdiction in civil and commercial matters. Moreover, such a reform would not preclude the possibility of the Union participating in a future international convention on jurisdiction but could rather provide a starting point for negotiations.

The analysis then turns to the relationship between jurisdiction and applicable law. Although these matters have traditionally been considered as distinct, the allocation of jurisdiction to the courts of the Member States is a key element in ensuring the implementation of the European Union’s material interests. First of all, it determines the application of the forum’s conflict-of-laws rules, which are now largely laid down in uniform terms by the Rome I and Rome II Regulations. Moreover, the link between jurisdictional rules and the implementation of the Union’s substantive policies becomes particularly evident when one considers that jurisdiction ensures the application of the forum’s overriding mandatory provisions. This aspect must be emphasised in any discussion aimed at assessing the scope of the Union’s jurisdiction in civil and commercial matters, especially in light of the increasingly frequent tendency of the EU legislator to expressly qualify EU substantive law as overriding mandatory provisions. For this reason, even though in a limited number of cases the EU legislator has sought to support the application of substantive rules by introducing specific rules on jurisdiction (notably, the General Data Protection Regulation and the so-called anti-SLAPP Directive), a more extensive revision of the Brussels I bis Regulation may be appropriate.

Finally, the Directive n. 2024/1760 (Corporate Sustainability Due Diligence Directive – CSDDD) is taken as a test case for the proposed methodological approach. In this instrument, the previously discussed requirements of access to justice and the protection of fundamental rights emerge with particular clarity, especially in the context of highly delocalised production activities. In fact, although the directive did not intend to introduce ad hoc jurisdictional grounds applicable to defendants domiciled in non-EU States, it sought to ensure the effectiveness of its substantive rules by introducing a harmonized civil liability regime. Although the CSDDD is likely to be weakened by the imminent adoption of the so-called Omnibus package, breaches of substantive rules laid down in the Directive could still give rise to claims for compensation under the national law of the Member States. Therefore, this instrument remains a useful testing ground for a more general reflection on a possible reform of the Brussels I-bisRegulation, aimed at considering, in broader terms than at present, the introduction of uniform rules applicable to defendants domiciled in third States.