Law

The 442001 council regulation of December 22nd 2009 on the recognition and jurisdiction and judgments enforcements in commercial and civil matters offers a legal instrument that is directly applicable in the replacement of the Brussels convention of 1968. In Europe, the Brussels convention was the basic jurisdiction law source, the convention established that the consumers could take lawsuits to the physical location of the company, the physical location where the contract was carried out, or under some circumstances in their own nations of domicile. Under the previous Brussels convention of 1968, the businesses were allowed to sue the consumers however they could only sue them in the individuals home nation. The 442001 council regulation, which started operating in 2002, made several changes to the earlier convention and increased the range of circumstances in which the consumers could bring lawsuits against companies in their home nations. Most remarkable, the EU consumers are allowed to bring lawsuits in their home nations whenever the merchant, through the use of any means, has its activities directed to that nation and a contract is entered into, within the scale of such activities. It is important to note that, the EU is actively looking for ways and means through which it can extend the 442001 council regulation beyond the borders of EU to cover the free trade states of Europe such as Liechtenstein, Switzerland, Iceland and Norway (Soriano, Garcimartn  Francisco, 2004).  

Strengths of the 442001 council regulation
In the current exequatur procedure is much simplified especially on issues to do with enforcements and recognition of judgments as compared to the earlier system that was provided in the Brussels convection of 1968. Nonetheless, it is quite hard to justify especially in a market that is internal without frontiers that businesses and citizens have to experience certain expenditures in terms of time and costs to claim their rights while in foreign nations. If applications made for declarations on enforceability are in most cases successful and enforcement and recognition of judgments made in foreign nations rarely rejected, aiming for the goal of getting rid of the exequatur process in all commercial and civil issues have been made rational in the regulation. In practice, such can only be applicable principally to claims that are contested. The exequatur abolition should be well accompanied by all necessary safeguards. This is one of the shortcomings of the regulation but its impact is not great to the extent of diluting completely the great achievements of the regulation (Magnus et al, 2007).

For the field of the claims that are not contested, the intermediate procedures have been done away with on the grounds of control, in member nation, of the minimum standards that are related to the service containing the document that is instituting the proceedings and the information provision concerning the claim and also the defendants procedure. Furthermore, there should be a review that is exceptional, this review should be used to remedy situations in instances when the defendant was personally not served in a manner that can enable him to organize his defence properly or where the defendant is not in a position to object to claims made against him or her due to the reason of extraordinary circumstances or force majeure. Under the current 442001 council regulation, the claimant has to go through the procedure of certification, whether the procedure is conducted in the member nation where it originated from or in the state of enforcement (Hess, Pfeiffer  Schlosser, 2008).

In the field of uncontested and contested claims, the regulation on matters to do with maintenance obligations, it abolishes the exequatur on the grounds of the rules that are harmonized on law applicability and the human rights protection is ensured via the procedure of special review which is applicable once the issue of judgment has taken place. The regulation takes considerations that there is a low figure of judgments that are problematic presented for enforcement and recognition, it is possible to have free circulation, but the defendant has to have a redress that is effective that is posteriori. In case a similar approach was followed in commercial and civil issues generally, the absence of harmonization in regard to the procedure of the special review might have the effect of introducing a certain extent of ambiguity in the few circumstances where a defendant was unable to properly defend himself in a foreign court. The regulation has therefore reflected the need for a review procedure that is more harmonized in order to make it more desirable (Rickett  Telfer, 2003).

Regulation operation in the legal order of foreign nations
The proper functioning of the commercial policy of community and internal market, both at the international and internal levels require an equal access to justice, such should be based on very precise and clear rules concerning the international jurisdiction, such should be well ensured for both claimants and defendants domiciled within the community. Jurisdictional needs of individuals in the community especially with the third parties are similar this is a major achievement of the regulation since it levels the playing field in terms of justice as it makes it possible for individuals to access justice regardless of the nation they are living in. The regulation has ensured that reply to these requirements do not vary from one state to another. Hence uniform justice is applied in all the member states as parties are not given any form of preference simply because they come from a certain state. The common approach that is applied by the regulation thus ensures that the legal protection of economic operators and community citizens is strengthened it also guarantees the mandatory application of community legislation (Biehler, 2008).

In order to make it possible to extend the individual scale of rules of jurisdiction to the defendants who are domiciled in the third states, it is quite important for the regulation to consider the extent to which the rules of the special jurisdiction of the 442001 council regulation, with the prevailing factors that are connecting all the issues at hand, could be applicable to the defendants in the third states. Furthermore, the extent to which it would be appropriate and necessary to create more grounds of jurisdiction for the disputes involving the third state defendants is reflected in the regulation and hence clear boundaries have been established. The rules that exist at the national level pursuing a significant goal of ensuring adequate access to justice the regulation should reflect the rules that are uniform, which might be appropriate. Hence a balance should be established between ensuring adequate access to justice and the international courtesy. The regulation should consider three grounds, the jurisdiction that should be based on conducting activities as long as the dispute is related to the activities the assets location, but the claim must be related to the assets and forum necessitatis, which could permit proceedings to be held in circumstances when it would not be possible to access justice. In addition, if rules that are uniform for claims being made against the defendants of third state are established, there will be an increase in the risk of the parallel proceedings brought before the third state courts and the member state. The regulation has therefore considered the situations in which access to the member states courts have to be ensured regardless of the proceedings continuing in other places and in which circumstances and under which specific conditions it might be considered suitable to permit courts to turn down jurisdiction in order to favour the court decisions of the third states. Such is applicable, for example when the parties involved in a dispute have concluded a choice of a court that is exclusive, and the agreement made by the court is actually favouring the third states courts, in instances when the disagreement is under the third state courts exclusive jurisdiction, or in instances when parallel court proceedings are already before a third state (Hess, Pfeiffer  Schlosser, 2008).

The 442001 was quite successful in considering to the extent to which an extension of the scale of the rules of jurisdiction ought to be accompanied by the common rules that are applicable on the judgments of the third state. The effect of harmonization of judgments made by the third state was ensured by the 442001 council regulation that it would boost legal certainty, especially for the defendants of community who happen to be engaged in before the third state courts proceedings. The council regulation of 2001 ensured a universal regime of enforcement and recognition of the judgments made by the third states, which would enable them to foresee the circumstances under which the judgment of a third state is capable of being enforced on any community member state, especially in situations when such judgments are in breach of the community law that is mandatory or when the community offers for jurisdiction that is exclusive of the courts of the member states (Soriano, Garcimartn  Francisco, 2004).  

Court choice
The 442001 council regulation managed to make accords on jurisdiction made by the parties to be accorded the fullest effect. The council was thus successful in ensuring that the contracts entered into by the parties concerned are fulfilled with minimal chances of breach by either party privy to the contract. This is so, not simply due to the practical significance as far as the international commerce is concerned, but for the very objective of ensuring justice at all times. The regulation thus considered the extent and also the manner in which the result of such accords falling under the 442001 council regulation can actually be made much stronger, especially in circumstances of parallel court proceedings. A very important solution that the regulation has brought about is the releasing of designated court in an agreed choice of court that is exclusive, from the obligation it has of making the proceedings to remain under the rule of lis pendens. However, despite the great benefit of this solution in ensuring that court decisions were made much faster, it resulted into a major drawback in proceedings that are parallel as it led to possibilities of judgments that are irreconcilable (Svantesson, 2007).

The regulation also developed another solution that is capable of reversing the rule of priority insofar as the choices of the agreements of the court that are exclusive are concerned. Under this particular choice, the court that is designated by the accord would have the preference of determining the jurisdiction and thus any other court that would have been seized would have to stop its proceedings on the dispute until such a time when the chosen court jurisdiction will have been established. The solution in this case is already applicable in the regulation context in respect to parties that are both not domiciled in the member state. This solution therefore is capable of aligning to great extent internal rules of the community with the rules that are international. However, this solution has a major drawback in case the agreement is not valid a party have to first seek establishing the invalidity of the agreement before the designated court in the particular agreement before it is possible to take hold of the courts that are competent (Hess, Pfeiffer  Schlosser, 2008).

Alternatively, the regulation provides that the lis pendens rules that are existing can be maintained, however communication that is direct between the courts handling the dispute of the parties, and also their cooperation could be combined, envisaged, for example, determining a time limit for the court that is seized first to make a decision on the jurisdiction question and committing itself to the obligation of reporting on a regular basis, to the court that is seized second on the development of the ongoing proceedings. Under this particular option, the 442001 council regulation ensured that the chances of the claimant loosing a forum that is legitimate on grounds that are outside his or her control are minimized as much as possible (Bael, Bael  Bellis (Firm), 2005).

As a result of the Brussels regulations that were made in 2001 the jurisdiction agreements efficiency was enhanced by strengthening the damages granting for the breach of such accords, arising for example as a result of a delay or due to exercising the clauses of default contained in the loan agreements. The other solution that was developed by the regulation was excluding the rule of lis pendens application in circumstances where the proceedings that are parallel or on merit on one hand and the declaratory relief proceedings, or at least ensuring that there is a postponement of the running periods of limitation in respect to the claims based on merit in circumstances when the relief declaratory fails (Mntysaari, 2009).

The regulation was also successful in addressing the uncertainty engulfing the agreement validity. For example, through the prescription of a choice that is standard of the clause of the court that at the same time could expedite the jurisdiction decision by the courts. The regulation thus combined this option with the other solutions discussed above and the parallel proceedings acceptance or the priority rule reversal could be restricted to the circumstances where the choices made by the court on the agreement assumes the standard form that is prescribed under the regulation (Soriano, Garcimartn  Francisco, 2004).  
Industrial property

The regulation dealt in a comprehensive manner, disputes between parties that are related to industrial property. The likelihood of effectively challenging or enforcing property rights of industrial nature to the community has a fundamental significance for the proper functioning of the entire internal market. The substantive law provided by the regulation on the intellectual property is mainly based on acquis communautaire. The directive given by the 2001 regulation on intellectual property rights enforcement is well aimed at estimating various procedural questions that are concerned with the enforcement. In order for the regulation to fully deal with the absence of legal certainty together with the high costs resulting from the duplication of the proceedings brought before the courts, the regulations created a judicial system that is integrated via the establishment of European system of patent litigation that is unified that would have to be entitled in the deliverance of judgments on the infringement and validity of future patents of the European community for all the territory under the internal market. Furthermore, the regulation mandated the commission to adopt a recommendation that would enable it to negotiate the directives in order to make conclusions on agreements that are international involving the member states, community as well as other contracting states that are under the patent convention of Europe. Waiting for the establishment of the patent litigation system that is unified, various shortcomings realized in the previous regulation have already been identified and thus the 442001 council regulation intends to address these shortcomings (Nuyts, 2008).
In coordinating the proceedings of parallel infringement, the 442001 council regulation strengthened the interaction and communication among the courts that have been seized in proceedings that are parallel and or to bar the application of certain rules in the event of a relief of a negative declaratory. With respect to coordinating invalidity and infringement proceedings, the regulation has developed several solutions aimed at countering the torpedo practices that have been suggested in various forums. In order for the regulation to deal effectively with these problems it created a patent litigation system that is unified, under this system, it was not necessary to have modifications on the regulation (Sender, 2002).

If for any reason, it is deemed fit to offer a consolidation for the proceedings in opposition to a number of infringers to the European patent, especially where the infringers are owned by a group of organizations acting according to a coordinated policy, the regulation has developed a solution. In this case, the solutions that have been created are meant for establishing specific rules permitting proceedings of infringement relating to various rights under industrial property against many defendants, the accused is allowed to bring them before the member state courts. The regulation thus paved way for such cases to be brought in the state where the defendant responsible for organizing activities or at least having a close association with the infringement in question is physically domiciled. But despite the much success achieved by the regulation in settling disputes of this nature, it has experienced a great drawback since the rule might lead to a case of reproduction of the major potential pointers of jurisdiction and thus undermine the ability to predict the rules of jurisdiction under the principle and regulation with considerable certainty. Furthermore, the rule is capable of leading to a shopping forum. Alternatively, the rules reformulation on defendants plurality may be visualized in order to boost the roles performed by the member state courts where the basic responsibility of the defendant is actually domiciled (Colston  Middleton, 2005).

Lis pendens together with the related actions
The 442001 council regulation is quite specific and clear on the general application of the rule of lis pendens. The regulation has ensured that the rule is well mirrored in the prevailing problems in order to deal with them by strengthening the interaction and communication between the seized courts in proceedings that are parallel and or excluding the rule application in the event of a declaratory relief that is negative (Reich, 2005).

On the issue of actions related to the rule, the regulation ensured that they are reflected the extent to which it is suitable to allow actions, which are grouped by and or in opposition to various parties on the grounds of uniform rules. The regulation minimized the chances of negative conflicts from jurisdictions, since this problem was well addressed through communication and cooperation mechanism among the courts that are handling the dispute. It was also solved through the obligation by the court declining jurisdiction to open the case again if the court that was seized first rejects jurisdiction. The regulation makes it clear that the authority with mandate for the service should be the first authority to first receive the documents being served. Furthermore, considering the significance of the time and date of receipt, authorities that are responsible for the service as well as the courts, as suitable, the regulation ensured that the authorities must note the exact time they received the documents or the exact time the document responsible for instituting the proceedings was actually lodged in the court. The regulation also offers the possibility of offering a restricted extension to the rule permitting room for consolidation, should the court possess jurisdiction over a quorum of defendants (Stone, 2006).

Provisional measures
The ex parte measures provided in the 442001 council regulation, it may be suitable for the regulations to make clarifications on such measures. This will make it possible for the measures to enforce and recognize on the grounds of this regulation whether or not there is an opportunity for the defendant to challenge the measure (Mntysaari, 2009).

In addition, the jurisdiction allocation for the provisional measures that are ordered by a certain court that does not possess the power on the matter at hand, may have to be approached in a different manner it is currently under the prevailing case law in the previous regulation. In particular, should a state that is a member whose courts do actually have authority on the matter under consideration, then such courts were empowered by the regulation to adapt, modify or discharge provisional measures that are provided by the member states courts. However, such courts must have the capacity granted by the regulation to deal with such matters (Hess, Pfeiffer  Schlosser, 2008).

The roles of the seized courts according to the provisions of the regulation should be helping the proceedings in terms of merits through lending various remedies especially in situations when it is not possible to have effective protection in each and every member state, without the need to interfere with the powers of the courts with the authority on the substance. In the event when such help is no longer required, the court with power on the matter may have to set aside the abroad measure. Furthermore, communication and interaction between the involved courts may be of great assistance and thus the regulation promotes such communication and interactions. It permits the individuals who are applying to look for provisional protection that is efficient where it is available (Biehler, 2008).

According to the needed repayment guarantee, especially a provisional payment, the regulation deemed it desirable to make specifications on the guarantee so as to increase the level of confidence between the participating parties. However, the guarantee does not have to comprise of a bank guarantee or a payment that is provisional. Alternatively, the regulation considers that such difficulties will be sufficiently resolved via the provisions provided in the regulation (Basedow  Yassari, 2004).

Interface between arbitration and regulation
The regulation was very effective in creating an interface between itself and arbitration in order to achieve its objectives more easily. According to the regulation, arbitration is very significant as far as international trade is concerned and it thus had to be integrated with the regulation. All agreements on arbitration ought to be accorded the greatest effect possible and the enforcement and recognition of arbitral rewards should be promoted. The convention that was made in New York in 1958 is commonly viewed to operate in a manner that is quite satisfactory and it is therefore highly appreciated by several practitioners. It is for these reasons that made the provisions of the convention to be included in the arbitration and regulation interface. This is due to the fact that it seemed suitable to leave the application of the convention virtually untouched if not a basic point of start for advanced actions. By including this convention in the arbitration and regulation interface, the regulation is now in a position to address various specific issues concerned with arbitration affecting the regulation itself. The convention achieves this not just to regulate the arbitration process but to ensure that the judgments in Europe are circulating smoothly and that parallel proceedings are prevented as much as possible (Smith, 2007).

Particularly, an incomplete removal of arbitration from regulation scope might boost the latters interface with the proceedings of the court. Due to such removal, the proceedings of the court supporting the arbitration might fall within the regulations scope, thus enhancing the regulation and making the Brussels regulation of 2001 very effective in fulfilling its objectives. In addition, there is a special rule in the regulation that allocates authority in such court proceedings thus enhancing legal certainty a very big plus for the regulation. For example, the convention has already made it possible for the regulation to propose the granting of exclusive power for such court proceedings of member states where the arbitration is taking place, may be to possibly make the parties come to an agreement within a short time. Again, the arbitration exception deletion is capable of making sure that all the powers of the regulation are applicable in provisional measures issuance in order to fully support the arbitration. The provisional measures that are ordered by courts are significant in ensuring arbitrations effectiveness, especially when an arbitration tribunal is finally set up (Mntysaari, 2009).
Furthermore, such a deletion permits the judgments recognition in making decisions concerning the validity of agreements made under arbitration and also makes clarifications on the enforcement and recognition of the judgments that are used for merging an award for the arbitration. Such can avoid the possibility of parallel proceedings from taking place between arbitral tribunals and courts in case the agreement that is finally arrived at is valid for one member state while it is invalid for the other. In a more general sense, the harmonization between proceedings related to arbitration agreement validity before an arbitral tribunal and a court might also be addressed through such a deletion. For instance, one could give preference the member state courts where the arbitration is held in order to make decisions on the scope, validity and existence of the arbitration accord. Again, this can actually be used to be included in enhanced cooperation between seized courts, including limits of time for the party that is contesting the agreement validity. The regulation adopted a uniform rule of conflict relating to the arbitration agreements validity linking for example to law governing a state where the arbitration was held, as a result, the regulation is in a position of minimizing the risk of the agreement of arbitration being considered invalid in a certain member state while it is considered valid in another. The regulation is thus capable, of enhancing community level coordination as well as increasing the arbitration agreements effectiveness (Lew, Mistelis  Krll, 2003).

Conclusion
The 442001 council regulation is quite effective in several aspects as it is capable of dealing with various challenges in a comprehensive manner. As discussed above, the regulation has managed to do away with several intermediate measures and it is thus in a better position to enforce and recognize foreign judgments and also be applicable in the legal order of foreign nations. The regulation provides an opportunity for the choice of court in which case, agreements on the authority by the .parties in the dispute is given the maximum possible effect. Another major achievement of the 442001 council regulation is the recognition of industrial property, which in the modern world has a great potential in trade and is quite sensitive and should thus be dealt with carefully. The lis pendens together with the related actions are included in the regulation and as a result, the regulation has been strengthened in terms of interaction and communication between seized courts in parallel proceedings. In addition, the regulation created an interface between arbitration and regulation and hence not all matters have to go through the court process, since the parties have the option of having their matters resolved in an arbitral tribunal.