Introduction: This paper endeavours to compare the standard English law and the European Community (EC) law on jurisdictional values, in that, it seeks to comprehend and elucidate why the former pair of jurisdictional rules value flexibility and justice while the latter values certainty and predictability vis-à-vis the other. It shall analyse their historical or political background, their objectives and bases for assuming jurisdiction. It shall highlight the regions of differences between these jurisdictional regimes with the assistance of authorities like significant Court cases and books that have besides explaining or simplifying the law have helped its evolution.
Definition: The term 'Jurisdiction' can have several meanings, but if understood in context with the Court of law it generally means the power or authority of a specific Court to ascertain the problems before it which a choice is sought. The rules on Jurisdiction play a pivotal role in determining the Court's ability to handle the problems in confirmed matter.
Jurisdictional issues become complex on the involvement of more than one Court having jurisdiction. This is actually an area of concern not merely for the international trade or business (who might be put in a invidious position where they're unacquainted with the extent of the liability) but additionally the sovereign states that seek to trade with each other and never having to spoil their amicable relationship.
The English Law: The English legal system (having the common law at its core) has already established and still continues to really have a formidable invest expounding the law on several issues, mostly because of the option of intellectuals and experts that have helped it in doing so.
Traditional English law (the common law) is simply the case laws that have over period of time become an authority regarding the matter determined therein. Just before entering the European Union (EU) by signing the document of accession in 1978, in the U.K, combined with judge made laws, even legislations played a substantial role although it could have been just about remedial in nature. However, it appears logical to permit the judge made law to try the legislation whenever it is so required by the change in circumstances which may be given effect to with relative ease as in comparison with the legislation process.
Prior to the advent of the Brussels/Lugano system and the Modified Regulation the standard rules were applied in every cases, and it is their historical roots making it appropriate to refer for them as the standard English law/rules.
The jurisdiction of English courts is determined by different regimes:
1. The Brussels I Regulation (hereinafter the 'Regulation') (an amended version of the Brussels Convention but notwithstanding the amendments it applies an identical system of rules on jurisdiction);
2. The Modified Regulation which allocates jurisdiction within U.K under certain circumstances; and
3. The traditional English rules.
There are other sets of rules on jurisdiction such as the EC/Denmark Agreement on jurisdiction and the those included in the Lugano Convention; but their ambit is restricted in application to the cases where the defendant is domiciled in Denmark in the event of the former and in a EFTA member state in the event of the latter. There's also the Brussels Convention which applies to Denmark alone.
The EC law: On the other hand to the standard English law, the European Community seems to position more importance on the legislative work than the judge made laws. Apparently, for the EC, it is more critical that the essential edifice of the legal system should be located in a codified structure which it defends on the causes of easy understanding amongst other reasons. Whereas, English laws seem to put more increased exposure of having a common law or judge made law background. On this anvil, one begins to comprehend the differences that exist between the respective legal systems and their values, that's, a simple difference in the method of approaching the problems even yet in cases where their objectives might be same.
The EC law on jurisdiction is more inclined towards the significance of predictability and certainty in the rules than towards matters like justice and flexibility as could be understood upon reading the 11th recital of the Regulation that states: 'The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction must generally be predicated on defendants domicile and jurisdiction must always be available with this ground save in few defined situations...'
Whereas, the only reference to flexibility in the Regulation is included in the 26th recital wherein it provides that the rules in the regulation might be flexible and then the extent of allowing specific procedural rules of member states.
Based on the EC law on jurisdiction, it appears that this specific requirement of predictability is required for parties to a dispute to learn exactly within which jurisdiction(s) they are able to sue and be sued. The EC law gives priority to the primary objective of harmonizing the laws on jurisdiction within the territory of its member states and therefore helps it be mandatory to uphold the strict accuracy to its principle while giving secondary status to the objective of justice for the parties. The EC law along with the standard English law may perfectly have their own justifications and reasons for adhering to a particular system; but it is submitted this seems to be not just a matter of difference in method of approach or attitude but additionally a matter of prioritization of the objectives by both the EC law and traditional English law on jurisdiction. The listing of cases mentioned hereinafter for the advantage of elucidating the topic under discussion are, as will be evident, decided beneath the Brussels Convention which may be employed for interpreting the rules beneath the Regulation.
Comparison of EC Law v English Law:
1. Bases of Jurisdiction: The absolute most significant difference that exists between the standard English laws and the EC law on jurisdiction may be the part of discretion that the respective body of law gives to the judges in determining the jurisdictional issues. Under the Regulation the assumption of jurisdiction is largely mandatory with the court not being liberated to decline jurisdiction; whereas beneath the English traditional rules the assumption of jurisdiction is discretionary.
The Regulation applies and then matters which can be civil and commercial in nature and to not those which have been explicitly excluded from its application (for e.g. Cases regarding arbitration, succession, wills and bankruptcy have now been excluded from the application form of the Regulation). Whereas, the standard English rules apply not merely to cases that fall beyond your scope of Art.1 of the Regulation but and also to those that fall within its scope where in actuality the defendant isn't domiciled in any member state and the jurisdiction isn't allocated by the rules which apply, regardless of domicile.
A. In the standard English rules the court has jurisdiction in three situations:
i. If the defendant is contained in England (though the court may stay the proceedings on the ground that another court is just a appropriate forum). Jurisdiction under this example is influenced by the current presence of the defendant in the united kingdom whereby the claim form might be served to him.
ii. If the defendant submits to the court's jurisdiction: wherein the defendant submits by not contesting jurisdiction or by arguing the case on its merits.
iii. If the claim falls within Practice Direction: (CPR PD 6B) (which is influenced by the court giving permission to serve process out of its jurisdiction) where in actuality the court considering England to be the most appropriate forum (despite of lack of reasons under i. or ii. on the cornerstone of some connection between England and the defendant. There seems on a perusal with this provision, an operating similarity with Arts.5 & 6 of the Regulation.
B. Jurisdiction beneath the EC Law: Except for several instances where in actuality the applicability of the EC law on jurisdiction does not depend on the defendants domicile (Art.22 Exclusive Jurisdiction and Art.23 Prorogation of Jurisdiction) the EC law on jurisdiction rests on the domicile of the defendant, and helps it be mandatory for the court of a part state to ascertain the jurisdictional issues and other issues where in actuality the defendant is domiciled in its jurisdiction.
The Brussels Regulation does offer instances where in actuality the defendant could be sued in another member state though he's not domiciled in that specific state; but these cases have now been very explicitly outlined in the regulation leaving little or no scope for the exercise of discretion by the judge. However, Art.4 of the Regulation provides a member state can (subject to the provisions in Articles 22 and 23 of the Regulation) exercise its traditional laws on jurisdiction in cases where the defendant isn't domiciled in the member states. This provision while giving scope for the applicability of the standard rules has at the same time frame also given rise to the idea that there's now only one source of jurisdictional rules, namely the Brussels Regulation.
C. Mandatory rules under EC law v Forum Conveniens:
Forum conveniens: upon bringing a motion in England, the claimant must prove that it is the forum conveniens, that's, the matter could be tired therein in the interest of justice; and the relevant factors in considering this are exactly like under forum non conveniens. Forum conveniens is determined in two stages, namely:
i. Where in the 1st stage the claimant should reveal that England is an appropriate forum (considering, among other things, the character of dispute, issues involved and in cases where relevant, the option of witnesses.
ii. At the second stage the claimant must establish that even if you have another forum, justice will not be achieved there, showing thereby that England may be the appropriate forum.
However, England may not be the right forum where in actuality the claimant is only going to be deprived of some legitimate personal or juridical advantage such as a higher compensation award. DUI
Mandatory rules under EC law: Unlike the Traditional English rules, beneath the Regulation, if the court has jurisdiction under the provisions thereof (e.g. Arts.2 or 5) it cannot refuse jurisdiction on the causes that various other court is best suited to ascertain the matter, showing the mandatory nature of the rules.
In case there is lis pendens (Art.27) or proceedings in 2 or even more states (Art.28) the Regulation gives precedence to the court first seized (Art.29 & 30) regardless of actual jurisdiction being in the court 2nd seized.
These rules are mandatory in so far as they fall within the scope of Art.1 of the Regulation; no deviation thereof is permitted on the causes of justice or convenience or any like reason. Paraphrasing the reasoning of the ECJ, the explanation for such mandatory compliance may be the promotion of legal certainty and predictability and the free flow of judgments between the member states on the cornerstone of the codified rules in the Regulation that aren't influenced by any judge's discretion.
