Introduction: This paper endeavours to compare the original English law and the European Community (EC) law on jurisdictional values, for the reason that, it seeks to understand and elucidate why the former group 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 what the law states have also helped its evolution.
Definition: The term 'Jurisdiction' can have several meanings, but when understood in context with the Court of law it generally means the capability or authority of a certain Court to determine the difficulties before it where a decision is sought. The rules on Jurisdiction play a pivotal role in determining the Court's ability to handle the difficulties in confirmed matter.
Jurisdictional issues become complex on the involvement of several Court having jurisdiction. This is actually a location of concern not merely for the international trade or business (who might be put within an invidious position where they are unacquainted with the extent of the liability) but also 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 normal law at its core) has had and still continues to truly have a formidable invest expounding what the law states on several issues, mostly as a result of option of intellectuals and experts that have helped it in doing so.
Traditional English law (the common law) is basically the case laws that have over time frame 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 an important role though it could have been more or less 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 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 original rules were applied in all cases, and it is their historical roots that make it appropriate to refer in their mind as the original 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 a similar system of rules on jurisdiction);
2. The Modified Regulation which allocates jurisdiction within U.K under certain circumstances; and
3. The standard 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 restricted in application to the cases when 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's also the Brussels Convention which applies to Denmark alone.
The EC law: In contrast to the original English law, the European Community seems to put 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 based in a codified structure which it defends on the causes of easy understanding amongst other reasons. Whereas, English laws seem to put more emphasis on having a typical 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 is, a basic difference in the method of approaching the difficulties even yet in cases when 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 real reference to flexibility in the Regulation is within the 26th recital wherein it offers that the rules in the regulation might be flexible simply to the extent of allowing specific procedural rules of member states.
Based on the EC law on jurisdiction, it appears that this particular requirement of predictability is necessary for parties to a dispute to know 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 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 original English law may well have their own justifications and reasons for adhering to a particular system; but it is submitted that this appears to be not just a matter of difference in method of approach or attitude but also a matter of prioritization of the objectives by the EC law and traditional English law on jurisdiction. The set of cases mentioned hereinafter for the main benefit of elucidating the topic under discussion are, as will probably be evident, decided under the Brussels Convention which can be employed for interpreting the rules under the Regulation.
Comparison of EC Law v English Law:
1. Bases of Jurisdiction: Probably the most significant difference that exists between the original English laws and the EC law on jurisdiction could be the component 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 essentially 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 which can be civil and commercial in nature and not to those which have been explicitly excluded from its application (for e.g. Cases related to arbitration, succession, wills and bankruptcy have now been excluded from the application form of the Regulation). Whereas, the original English rules apply not merely to cases that fall beyond your scope of Art.1 of the Regulation but and 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 any of the rules which apply, no matter domicile.
A. In the original 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 really a more appropriate forum). Jurisdiction under this case is determined by the clear presence of the defendant in the united states 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 determined by 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 absence of reasons under i. or ii. on the cornerstone of some connection between England and the defendant. There seems on a perusal of this provision, a practical similarity with Arts.5 & 6 of the Regulation.
B. Jurisdiction under the EC Law: Except for several 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 helps it be mandatory for the court of a part state to determine the jurisdictional issues and other issues where in fact the defendant is domiciled in its jurisdiction.
The Brussels Regulation does provide for instances where in fact the defendant could 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 minimum 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 when the defendant is not domiciled in any of the member states. This provision while giving scope for the applicability of the original rules has at once also given rise to the theory that there's now only 1 supply of jurisdictional rules, namely the Brussels Regulation.
C. Mandatory rules under EC law v Forum Conveniens:
Forum conveniens: upon bringing an action in England, the claimant needs to prove that it is the forum conveniens, that is, 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 decided in two stages, namely:
i. Where in the first stage the claimant should show that England is an appropriate forum (considering, among other things, the character of dispute, issues involved and in cases when relevant, the option of witnesses.
ii. At the next stage the claimant must establish that even when there is another forum, justice will not be achieved there, showing thereby that England could be the more appropriate forum.
However, England may possibly not be the appropriate forum where in fact the claimant is only going to be deprived of some legitimate personal or juridical advantage such as for instance a higher compensation award. Estate
Mandatory rules under EC law: Unlike the Traditional English rules, under the Regulation, if the court has jurisdiction under any of the provisions thereof (e.g. Arts.2 or 5) it cannot refuse jurisdiction on the causes that some other court is most effective to determine the matter, showing the mandatory nature of the rules.
In the event of 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) whatever the 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 causes of justice or convenience or any like reason. Paraphrasing the reasoning of the ECJ, the reason behind such mandatory compliance could 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 aren't determined by any judge's discretion.
