Introduction: This paper endeavours to compare the standard English law and the European Community (EC) law on jurisdictional values, because, it seeks to understand and elucidate why the former set 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 aspects of differences between these jurisdictional regimes with the assistance of authorities like significant Court cases and books which have besides explaining or simplifying the law have helped its evolution.
Definition: The term 'Jurisdiction' might have several meanings, but when understood in context with the Court of law it generally means the power or authority of a particular Court to find out the difficulties before it where a choice is sought. The guidelines on Jurisdiction play a pivotal role in determining the Court's ability to address the difficulties in a given matter.
Jurisdictional issues become complex on the involvement of more than one Court having jurisdiction. This is really an area of concern not merely for the international trade or business (who might be put within an invidious position where they're unacquainted with the extent of the liability) but in addition the sovereign states that seek to trade with one another without having to spoil their amicable relationship.
The English Law: The English legal system (having the normal law at its core) has received and still continues to have a formidable invest expounding the law on several issues, mostly as a result of accessibility to intellectuals and experts which have helped it in doing so.
Traditional English law (the common law) is basically the case laws which have over time frame become an authority regarding the problem determined therein. Ahead of entering the European Union (EU) by signing the document of accession in 1978, in the U.K, combined with the judge made laws, even legislations played an important role although it may have been pretty much remedial in nature. However, it seems logical allowing the judge made law to test the legislation whenever it's so required by the change in circumstances which can be given effect to with relative ease as when comparing to the legislation process.
Ahead of the advent of the Brussels/Lugano system and the Modified Regulation the standard rules were applied in every cases, and it's their historical roots which make 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 standard English rules.
You can find 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 fixed in application to the cases where the defendant is domiciled in Denmark in the event of the former and within an EFTA member state in the event of the latter. There is also the Brussels Convention which relates 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 compared to judge made laws. Apparently, for the EC, it's more important that the fundamental edifice of the legal system ought to be based in a codified structure which it defends on the grounds of easy understanding amongst other reasons. Whereas, English laws seem to put more emphasis on having a standard law or judge made law background. With this anvil, one begins to understand the differences that exist involving the respective legal systems and their values, that's, a basic difference in the manner of approaching the difficulties even in cases where their objectives might be same.
The EC law on jurisdiction is more inclined towards the importance of predictability and certainty in the principles than towards matters like justice and flexibility as could be understood upon reading the 11th recital of the Regulation that states: 'The guidelines of jurisdiction must certanly be highly predictable and founded on the principle that jurisdiction must generally be based on defendants domicile and jurisdiction must always be available on this ground save in few defined situations...'
Whereas, the only mention of flexibility in the Regulation is included in the 26th recital wherein it provides that the principles in the regulation might be flexible and then the extent of allowing specific procedural rules of member states.
In line with the EC law on jurisdiction, it seems that this specific requirement of predictability is required for parties to a dispute to learn exactly within which jurisdiction(s) they could sue and be sued. The EC law gives priority to the principal objective of harmonizing the laws on jurisdiction within the territory of its member states and therefore causes it to 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 as well as the standard English law may well have their particular justifications and reasons for adhering to a particular system; but it's submitted this appears to be not only a matter of difference in manner of approach or attitude but in addition a matter of prioritization of the objectives by the EC law and traditional English law on jurisdiction. The list of cases mentioned hereinafter for the advantage of elucidating the topic under discussion are, as shall be evident, decided under the Brussels Convention which can be employed for interpreting the principles under 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 component of discretion that the respective body of law gives to the judges in determining the jurisdictional issues. Underneath the Regulation the assumption of jurisdiction is basically mandatory with the court not being free to decline jurisdiction; whereas under the English traditional rules the assumption of jurisdiction is discretionary.
The Regulation applies and then matters that are civil and commercial in nature and to not those that have been explicitly excluded from its application (for e.g. Cases related to arbitration, succession, wills and bankruptcy have been excluded from the application form of the Regulation). Whereas, the standard English rules apply not merely to cases that fall away from scope of Art.1 of the Regulation but also to those who fall within its scope where in actuality the defendant is not domiciled in virtually any member state and the jurisdiction is not allocated by the rules which apply, no matter domicile.
A. In the standard English rules the court has jurisdiction in three situations:
i. If the defendant is within England (though the court may stay the proceedings on the floor that another court is just a right forum). Jurisdiction under this case is dependent on the current presence of the defendant in the country 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 dependent on the court giving permission to serve process out of its jurisdiction) where in actuality the court considering England to be probably 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, a functional similarity with Arts.5 & 6 of the Regulation.
B. Jurisdiction under the EC Law: Except for certain 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 causes it to be mandatory for the court of an associate state to find out the jurisdictional issues and other conditions 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 particular state; but these cases have been very explicitly outlined in the regulation leaving little if any scope for the exercise of discretion by the judge. However, Art.4 of the Regulation provides that the 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 is not 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 surely is now only one supply 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 has to prove it is the forum conveniens, that's, the problem could be tired therein in the interest of justice; and the relevant factors in considering this are the same as under forum non conveniens. Forum conveniens is determined in two stages, namely:
i. Where in the first 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 accessibility to witnesses.
ii. At the 2nd stage the claimant must establish that even when there is another forum, justice will not be done there, showing thereby that England may be the right forum.
However, England may possibly not be the right forum where in actuality the claimant will only be deprived of some legitimate personal or juridical advantage like a higher compensation award.
Mandatory rules under EC law: Unlike the Traditional English rules, under the Regulation, if the court has jurisdiction under the provisions thereof (e.g. Arts.2 or 5) it cannot refuse jurisdiction on the grounds that several other court is most effective to find out the problem, showing the mandatory nature of the rules. DUI
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 in terms of they fall within the scope of Art.1 of the Regulation; no deviation thereof is permitted on the grounds of justice or convenience or any like reason. Paraphrasing the reasoning of the ECJ, the cause of such mandatory compliance may be the promotion of legal certainty and predictability and the free flow of judgments amongst the member states on the cornerstone of the codified rules in the Regulation that are not dependent on any judge's discretion.
