Introduction: This paper endeavours to compare the standard English law and the European Community (EC) law on jurisdictional values, for the reason that, it seeks to know 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 that have besides explaining or simplifying the law also have helped its evolution.
Definition: The term 'Jurisdiction' may have several meanings, but when understood in context with the Court of law it generally means the capability or authority of a specific Court to find out the difficulties before it on which a decision is sought. The rules on Jurisdiction play a pivotal role in determining the Court's ability to handle the difficulties in a given matter.
Jurisdictional issues become complex on the involvement of several Court having jurisdiction. This is really a location of concern not only for the international trade or business (who may be put within an invidious position where they're unaware of the extent of these liability) but also the sovereign states that seek to trade with one another and never having to spoil their amicable relationship.
The English Law: The English legal system (having the common law at its core) has received and still continues to have a formidable place in expounding the law on several issues, mostly due to 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. Ahead of 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 significant role although it could have been just about remedial in nature. However, it appears logical to allow the judge made law to test the legislation whenever it is so required by the change in circumstances which may 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 all cases, and it is their historical roots which make it appropriate to refer in their mind as the standard English law/rules.
The jurisdiction of English courts is decided by different regimes:
1. The Brussels I Regulation (hereinafter the 'Regulation') (an amended version of the Brussels Convention but notwithstanding the amendments it applies the same system of rules on jurisdiction);
2. The Modified Regulation which allocates jurisdiction within U.K under certain circumstances; and
3. The original English rules.
There are other sets of rules on jurisdiction such as the EC/Denmark Agreement on jurisdiction and the those within the Lugano Convention; but their ambit is fixed in application to the cases where the defendant is domiciled in Denmark in case of the former and within an EFTA member state in case of the latter. There is also the Brussels Convention which relates to Denmark alone.
The EC law: In contrast to the standard English law, the European Community seems to place more importance on the legislative work compared to the judge made laws. Apparently, for the EC, it is more critical that the essential edifice of these legal system ought to be situated in a codified structure which it defends on the lands of simple understanding amongst other reasons. Whereas, English laws seem to put more increased exposure of having a typical law or judge made law background. With this anvil, one begins to know the differences that exist between the respective legal systems and their values, that is, a fundamental difference in the method of approaching the difficulties even in cases where their objectives may be same.
The EC law on jurisdiction is more inclined towards the importance of predictability and certainty in the guidelines than towards matters like justice and flexibility as can be understood upon reading the 11th recital of the Regulation that states: 'The rules of jurisdiction should 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 sole mention of flexibility in the Regulation is within the 26th recital wherein it provides that the guidelines in the regulation may be flexible simply to the extent of allowing specific procedural rules of member states.
According to the EC law on jurisdiction, it appears that this kind of requirement of predictability is required for parties to a dispute to understand exactly within which jurisdiction(s) they could 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 causes it to be mandatory to uphold the strict accuracy to its principle while giving secondary status to the goal of justice for the parties. The EC law along with the standard English law may well have their very own justifications and reasons for following a particular system; but it is submitted this appears to be not only a matter of difference in method of approach or attitude but also 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 shall be evident, decided under the Brussels Convention which may be useful for interpreting the guidelines under the Regulation.
Comparison of EC Law v English Law:
1. Bases of Jurisdiction: The most significant difference that exists between the standard English laws and the EC law on jurisdiction could be the element 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 largely mandatory with the court not being absolve to decline jurisdiction; whereas under the English traditional rules the assumption of jurisdiction is discretionary.
The Regulation applies simply to matters that are civil and commercial in nature and not to those which were explicitly excluded from its application (for e.g. Cases related to arbitration, succession, wills and bankruptcy have now been excluded from the application of the Regulation). Whereas, the standard English rules apply not only to cases that fall outside the scope of Art.1 of the Regulation but also to those who fall within its scope where in fact the defendant is not domiciled in any member state and the jurisdiction is not allocated by some of the rules which apply, irrespective of domicile.
A. In the standard English rules the court has jurisdiction in three situations:
i. If the defendant is present 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 dependent on the clear presence of the defendant in the united states whereby the claim form may 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 fact 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 of the provision, an operating similarity with Arts.5 & 6 of the Regulation.
B. Jurisdiction under the EC Law: Except for many instances where in fact the applicability of the EC law on jurisdiction does not be determined by 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 issues where in fact the defendant is domiciled in its jurisdiction.
The Brussels Regulation does give instances where in fact the defendant can be sued in another member state though he's not domiciled in that particular state; but these cases have now 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 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 is not domiciled in some of 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 theory that there 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 that it is the forum conveniens, that is, the matter can be tired therein in the interest of justice; and the relevant factors in considering this are just like under forum non conveniens. Forum conveniens is decided in two stages, namely:
i. Where in the first stage the claimant should reveal that England is a proper 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 when there is another forum, justice won't be performed there, showing thereby that England could be the appropriate forum. DUI
However, England may not be the appropriate forum where in fact the claimant will simply be deprived of some legitimate personal or juridical advantage such as for instance a higher compensation award.
Mandatory rules under EC law: Unlike the Traditional English rules, under the Regulation, if the court has jurisdiction under some of the provisions thereof (e.g. Arts.2 or 5) it cannot refuse jurisdiction on the lands that some other court is best suited to find out the matter, showing the mandatory nature of the rules.
In case there is lis pendens (Art.27) or proceedings in 2 or 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 as far as they fall within the scope of Art.1 of the Regulation; no deviation thereof is permitted on the lands of justice or convenience or any like reason. Paraphrasing the reasoning of the ECJ, the explanation for such mandatory compliance could 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 which are not dependent on any judge's discretion.
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