Exporting Jurisdiction: how the CJEU is Turning the EU into a quasi-Arbitral Space

The European Union’s evolving approach to jurisdiction under the Brussels Recast reveals a growing tension between deeper judicial integration and the ambition to position the Union as an attractive global forum for dispute resolution. Given the widespread use of forum-selection clauses in commercial practice, the Court of Justice of the European Union (CJEU) has transformed Article 25 into a powerful instrument of negative integration. The landmark Inkreal judgment marked a decisive step in this trajectory. Contrary to the Opinion of Advocate General Jean Richard de la Tour, the Court extended Article 25 to disputes lacking an objective cross-border element, effectively relaxing the traditional transnational requirement of EU judicial cooperation. In doing so, it endorsed what may be described as a “fifth freedom” within the internal market, the free movement of lawsuits, treating Member State courts as functionally interchangeable within an integrated judicial space. This development was further reinforced in Cabris Investment, where Article 25 was held applicable even when both parties were domiciled in the same third State. Together, these judgments raise pressing questions about the constitutional coherence of the Union’s increasingly arbitration-like jurisdictional framework.