Lloyd's Maritime and Commercial Law Quarterly
Demarcating the boundary between the Brussels I Regulation and the Evidence Regulation
Adam Rushworth *
The relationship between the Brussels I Regulation and the Evidence Regulation is unclear. In particular, uncertainties exist over provisional and protective measures used to obtain evidence, the use of in personam injunctions that require parties to produce evidence located abroad and the use of orders to obtain information relating to the judgment debtor’s assets. The present article attempts to provide some answers to these uncertainties.
I. INTRODUCTION
The European legislative bodies have been producing Regulations upon Regulations with alarming frequency in the area of the conflict of laws. We now have, among others, Regulations concerning jurisdiction and the recognition and enforcement of judgments in civil and commercial matters,1 jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility,2 insolvency,3 choice of law for contractual obligations (“Rome I”),4 choice of law for non-contractual obligations (“Rome II”),5 service abroad,6 the taking of evidence abroad,7 and the small claims procedure.8 Many of the more difficult problems that have arisen in recent years relate to determining how the Regulations fit together. Sometimes two Regulations are
* Senior College Lecturer in Private Law, Keble College, Oxford. I am indebted to Dr Christian Heinze, Mr Edwin Peel and Mr Andrew Scott for their generous assistance. All errors and omissions are my own.
1. Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L 12/1 (hereafter “the Brussels I Regulation”).
2. Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No. 1347/2000 [2003] OJ L338/1.
3. Regulation (EC) No. 1346/2000 of 29 May 2000 on insolvency proceedings [2000] OJ L160/1.
4. Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) [2008] OJ L177/6.
5. Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) [2007] OJ L 199/40.
6. Regulation (EC) No. 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No. 1348/2000 [2007] OJ L324/79.
7. Regulation (EC) No. 1206/2001 of 28 May 2001 on co-operation between the courts of the Member States in the taking of evidence in civil or commercial matters [2001] OJ L174/1 (hereafter “the Evidence Regulation”).
8. Regulation (EC) No. 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure [2007] OJ L199/1 (hereafter “the Small Claims Regulation”).
DEMARCATING THE BOUNDARY
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