Extending the Brussels Ia Regulation to Third State Defendants: a Gift from the EU to London’s Litigation Market?

Businesses, lawyers, and courts appreciate simpler rules, especially for cross-border litigation. But a simpler rulebook is not necessarily a better bargain. The European Commission’s current consultation on potentially reforming the Brussels Ia Regulation includes a particularly consequential question: should the European Union (EU) jurisdiction rules extend generally to defendants domiciled outside the EU? As I have argued, the answer should be no. Such a reform presented as harmonisation of jurisdictional rules could weaken EU businesses’ litigation options while handing an advantage to competing courts, particularly in London and other hubs overseas.

The Commission’s 2025 Application Report and the new commercial courts in Member States make the question of possible extension more pressing. The issue is not whether uniformity looks attractive on paper, but whether it improves access to justice and commercial dispute resolution in practice.

What would actually change?

Brussels Ia determines which Member State’s courts may hear cross-border civil and commercial disputes and facilitates enforcement of their judgments across the EU. Its ordinary jurisdiction rules principally concern EU-domiciled defendants. For defendants domiciled elsewhere, such as in the UK post-Brexit, national rules generally decide whether a Member State’s court can hear the case.

The current EU regime already contains some rules that also apply to Third State Defendants: consumers and employees enjoy protection against EU and non-EU defendants alike. Exclusive jurisdiction and agreements choosing Member State courts operate regardless of the defendant’s domicile. General extension would therefore chiefly affect ordinary commercial claims in contract and tort without a valid jurisdiction agreement.

Uniformity can mean fewer options

Full harmonisation by the EU would replace national ‘residual’ jurisdiction rules, including broad grounds such as Article 14 of the French Civil Code and Germany’s assets-based jurisdiction in the Code of Civil Procedure. Those rules can give a business a local forum against an overseas counterparty if other jurisdictional bases are unavailable. Under Article 6(2) Brussels Ia, claimants domiciled in a Member State can even invoke those national rules on the same terms as nationals. 

The Commission correctly identifies unequal access to courts between Member States. Yet equality achieved by removing broader grounds is levelling down, not necessarily improving access to justice. For an EU business pursuing an overseas debtor, losing a usable forum is a substantive disadvantage, not an administrative simplification.

Why London could gain

Post-Brexit, UK courts apply domestic jurisdiction rules, subject to applicable international conventions. The UK has however not joined the Lugano Convention, which would otherwise provide a shared framework with the EU. In an English court, when permission to serve proceedings abroad is required, claimants generally must establish a jurisdictional gateway, a claim with reasonable prospects of success, and that England is the proper place to litigate. It is in this context that the availability of another suitable court matters, such as a court in the EU.

Suppose a French court currently has jurisdiction under a national rule which the EU reform of Brussels Ia would remove. If the dispute also satisfies an English gateway, removing the French option can strengthen the argument for hearing it in England, even though the links to England might be tenuous.

This asymmetry matters commercially. England’s jurisdictional gateways were substantially widened in October 2022. Meanwhile, for instance, Germany’s Commercial Courts Act, effective from 1 April 2025, facilitates specialist commercial proceedings in English to compete with foreign courts and arbitration. Investing in attractive courts on the Continent while limiting jurisdiction of Member State courts pulls policy in opposite directions. Consequently, the potential beneficiaries are legal-service providers overseas.

Options and considerations for reform

Simplification has value, but the evidence hardly demands wholesale change. The 2025 Report records that a majority of Member States did not consider the absence of completely uniform rules an issue. It highlights a few minor, concrete problems which deserve examination and targeted rectification. It does not provide a basis for the assumption that general extension is the answer.

What has been proposed to mitigate some of the issues are accompanying safeguards, but they do not seem to be recommendable options either on closer inspection. For instance, importing exorbitant national grounds into EU legislation would elevate differential treatment of non-EU defendants into deliberate EU policy, potentially harming the EU’s external relations. A forum necessitatis, allowing proceedings where justice is otherwise unavailable, would ordinarily offer no substitute when a suitable English court remains available, unless the UK was considered to be an unsafe jurisdiction. ‘Reflexive effect’, allowing EU courts to defer to Third State courts by analogy with EU jurisdiction rules, would surrender—not restore—jurisdiction.

The present system treats non-EU defendants less favourably. This has long been recognised and criticised. But retaining the system does not worsen it, and Member States are and remain able to adjust their national rules themselves, as Italy and Croatia have done by adopting Brussels-based rules nationally for Third State defendants. By contrast, the EU should only pursue targeted clarification and simplification, rather than general extension. Before harmonising away jurisdiction, Brussels should be very clear about whose access to justice and whose litigation market it would improve.

Johannes Ungerer is the Erich Brost Senior Departmental Research Lecturer in German Law, European and International Private Law at the University of Oxford.