Introduction: This paper endeavours to compare the traditional 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 as 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 areas 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 ability or authority of a certain Court to determine the difficulties before it which a choice is sought. The guidelines on Jurisdiction play a pivotal role in determining the Court's ability to deal with the difficulties in confirmed matter.
Jurisdictional issues become complex on the involvement of more than one Court having jurisdiction. This is certainly a location of concern not just for the international trade or business (who may be put in an invidious position where they're unacquainted with the extent of the liability) but additionally 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 common law at its core) has already established and still continues to really have a formidable devote expounding the law on several issues, mostly as a result of accessibility to 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 pertaining to the problem determined therein. Prior to 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 though it may have been pretty much remedial in nature. However, it seems logical to allow the judge made law to check 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 traditional rules were applied in every cases, and it is their historical roots making it appropriate to refer to them as the traditional 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 just like the EC/Denmark Agreement on jurisdiction and the those contained 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 in an EFTA member state in the event of the latter. There's also the Brussels Convention which relates to Denmark alone.
The EC law: On the other hand to the traditional English law, the European Community seems to put more importance on the legislative work compared to judge made laws. Apparently, for the EC, it is more important that the basic edifice of the legal system should really be based in a codified structure which it defends on the grounds of simple understanding amongst other reasons. Whereas, English laws seem to put more focus on having a common law or judge made law background. With this anvil, one begins to comprehend the differences that exist between the respective legal systems and their values, that's, 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 significance of predictability and certainty in the principles than towards matters like justice and flexibility as can 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 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 contained in the 26th recital wherein it gives that the principles in the regulation may be flexible simply to the extent of allowing specific procedural rules of member states.
In line with the EC law on jurisdiction, it appears that this particular 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 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 traditional English law may very well have their very own justifications and reasons for following a particular system; but it is submitted that this appears to be not really 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 probably be evident, decided underneath the Brussels Convention which may be useful for interpreting the principles underneath the Regulation.
Comparison of EC Law v English Law:
1. Bases of Jurisdiction: The absolute most significant difference that exists between the traditional English laws and the EC law on jurisdiction is 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 essentially mandatory with the court not being absolve to decline jurisdiction; whereas underneath 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 never to those which were 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 traditional English rules apply not just 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 isn't domiciled in virtually any member state and the jurisdiction isn't allocated by any of the rules which apply, aside from domicile.
A. In the traditional 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 floor that another court is really a more appropriate forum). Jurisdiction under this situation is dependent on the clear presence of the defendant in the country 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 actuality the court considering England to be the absolute most appropriate forum (despite of lack of reasons under i. or ii. on the basis 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 underneath the EC Law: Except for certain instances where in actuality the applicability of the EC law on jurisdiction doesn't 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 a part state to determine 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 can 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 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 where the defendant isn't domiciled in any of the member states. This provision while giving scope for the applicability of the traditional rules has at the same time frame also given rise to the theory that there surely is 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 activity in England, the claimant must prove that it is the forum conveniens, that's, the problem 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 1st stage the claimant should show that England is a proper forum (considering, among other items, the type of dispute, issues involved and in cases where relevant, the accessibility to witnesses.
ii. At the second stage the claimant must establish that even if there is another forum, justice won't be done there, showing thereby that England is the more appropriate forum.Estate
However, England might not be the correct forum where in actuality the claimant is only going to be deprived of some legitimate personal or juridical advantage like a higher compensation award.
Mandatory rules under EC law: Unlike the Traditional English rules, underneath 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 grounds that some other court is best suited to determine the problem, showing the mandatory nature of the rules.
In case there is lis pendens (Art.27) or proceedings in 2 or maybe 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 explanation for such mandatory compliance is the promotion of legal certainty and predictability and the free flow of judgments between the member states on the basis of the codified rules in the Regulation that aren't dependent on any judge's discretion.
