Introduction: This paper endeavours to compare the original English law and the European Community (EC) law on jurisdictional values, because, 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 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 helped its evolution.
Definition: The phrase 'Jurisdiction' may 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 on 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 a given matter.
Jurisdictional issues become complex on the involvement of more than one Court having jurisdiction. This is actually a location of concern not merely for the international trade or business (who may 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 most popular law at its core) has had and still continues to have a formidable invest expounding what the law states 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 time period become an authority with regard to the situation 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 a significant role though it may have been just about remedial in nature. However, it appears logical to permit the judge made law to check the legislation whenever it's so required by the change in circumstances which can be given effect to with relative ease as in comparison to the legislation process.
Before the advent of the Brussels/Lugano system and the Modified Regulation the original rules were applied in all cases, and it's their historical roots which make it appropriate to refer to them as the original English law/rules.
The jurisdiction of English courts is set 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.
There are other sets of rules on jurisdiction just like 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's also the Brussels Convention which applies to Denmark alone.
The EC law: On the other hand to the original English law, the European Community seems to position more importance on the legislative work than the judge made laws. Apparently, for the EC, it's more important that the basic edifice of the legal system must certanly 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 focus on having a typical 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 manner of approaching the difficulties even yet 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 rules 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 should be highly predictable and founded on the principle that jurisdiction must generally be centered 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 within the 26th recital wherein it offers that the rules in the regulation may be flexible simply to the extent of allowing specific procedural rules of member states.
Based on the EC law on jurisdiction, it seems that this kind of requirement of predictability is essential 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 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 along with the original English law may very well have their particular justifications and reasons for adhering to a particular system; but it's submitted that seems to be not just a matter of difference in manner 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 main benefit of elucidating the topic under discussion are, as will be evident, decided under the Brussels Convention which can be used for interpreting the rules under the Regulation.
Comparison of EC Law v English Law:
1. Bases of Jurisdiction: The most significant difference that exists between the original English laws and the EC law on jurisdiction is 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 basically mandatory with the court not being liberated 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 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 original English rules apply not merely to cases that fall beyond your scope of Art.1 of the Regulation but also to the ones that 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, regardless of domicile.
A. In the original English rules the court has jurisdiction in three situations:
i. If the defendant is within England (though the court may stay the proceedings on a lawn that another court is really a appropriate forum). Jurisdiction under this example is dependent on the 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 actuality the court considering England to be the most appropriate forum (despite of absence of reasons under i. or ii. on the foundation of some connection between England and the defendant. There seems on a perusal of the 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 doesn't rely 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 a part state to find out the jurisdictional issues and other issues where in actuality the defendant is domiciled in its jurisdiction.
The Brussels Regulation does give instances where in actuality the defendant can be sued in another member state though he is not domiciled in that one 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 is not domiciled in the member states. This provision while giving scope for the applicability of the original rules has at the same time also given rise to the idea that there surely is now just one source 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 has to prove that it is the forum conveniens, that's, the situation can 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 set in two stages, namely:
i. Where in the very first stage the claimant should reveal that England is an appropriate forum (considering, among other things, the nature of dispute, issues involved and in cases where relevant, the option of witnesses.
ii. At the 2nd stage the claimant must establish that even if there is another forum, justice won't be achieved there, showing thereby that England is the appropriate forum.
However, England might not be the appropriate forum where in actuality the claimant will only be deprived of some legitimate personal or juridical advantage just 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 causes that several other court is best suited to find out the situation, 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 the actual jurisdiction being in the court 2nd seized.Estate
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 cause of such mandatory compliance is the promotion of legal certainty and predictability and the free flow of judgments amongst the member states on the foundation of the codified rules in the Regulation that are not dependent on any judge's discretion.
