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Cheshire, North and Fawcett: Private International Law, 15th Edition by Grušić, Uglješa; Heinze, Christian; Merrett, Louise; Mills, Alex; Otero García-Castrillón, Carmen; Sophia Tang, Zheng; Trimmings, Katarina; Walker, Lara (28th September 2017)

Part III Jurisdiction, Foreign Judgments and Awards, 10 Jurisdiction of the English Courts—An Introduction

Paul Torremans

From: Cheshire, North and Fawcett: Private International Law (15th Edition)

Uglješa Grušić, Christian Heinze, Louise Merrett, Alex Mills, Carmen Otero García-Castrillón, Zheng Sophia Tang, Katarina Trimmings, Lara Walker
Edited By: Paul Torremans, James J. Fawcett

Subject(s):
Choice of law clauses — Jurisdiction under the Brussels-Lugano Regime — Jurisdiction under the Brussels I Regulation — Jurisdiction under the Lugano Convention

(p. 187) 10  Jurisdiction of the English Courts—An Introduction

“Jurisdiction” is a word susceptible of several different meanings, but in the present account it is used to refer to the question of whether an English court will hear and determine an issue upon which its decision is sought.1 The position is complicated by the fact that there are numerous separate sets of rules determining the jurisdiction of English courts. First, there are four different sets of rules under the Brussels/Lugano system, ie the rules contained in the Brussels I Regulation as amended in the Brussels I Recast, the EC/Denmark Agreement, the Brussels Convention, and the Lugano Convention. Second, there are the rules contained in a modified version of the Brussels I Regulation (the Modified Regulation), giving effect to the Regulation as between the component legal orders of the United Kingdom. Third, there are the traditional English rules on jurisdiction. Fourth, there are the rules in the Hague Convention on Choice of Court Agreements 2005, which the European Union has ratified on behalf of all the Member States (except Denmark).

1.  Jurisdiction Under the Brussels/Lugano System

(a)  The Brussels I Regulation and Brussels I Recast

The Brussels I Regulation was adopted in 2001, to replace the earlier Brussels Convention (discussed below). For proceedings commenced on or after 10 January 2015, the Brussels (p. 188) I Regulation has been replaced by the Brussels I Recast. In broad terms, the rules on jurisdiction contained in the Brussels I Recast apply where:

  1. (a)  the matter is within the scope of the Brussels I Recast (most civil and commercial matters); and

  2. (b)  the defendant is domiciled in a European Union Member State, apart from Denmark (ie in Austria, Belgium, Bulgaria, Croatia, Cyprus,2 the Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom). Even if the defendant is not so domiciled, certain provisions in the Brussels I Recast will still apply, eg where the case involves title to land in a Member State or where there is an agreement conferring jurisdiction on the courts of a Member State.

The Brussels I Regulation and Brussels I Recast are discussed in Chapter 11, aside from those aspects dealing with stays and the management of parallel proceedings, which are discussed in Chapter 13.

(b)  The EC/Denmark Agreement

In broad terms, the rules on jurisdiction contained in the EC/Denmark Agreement apply where:

  1. (a)  the matter is within the scope of the Brussels I Recast (most civil and commercial matters); and

  2. (b)  the defendant is domiciled in Denmark. Even if the defendant is not so domiciled, certain provisions in the Brussels I Recast will still apply, eg where the case involves title to land in Denmark or where there is an agreement conferring jurisdiction on the courts of Denmark.

The EC/Denmark Agreement initially applied by international law the provisions of the Brussels I Regulation, with minor amendments. Pursuant to the Agreement, Denmark has formally decided to apply the Brussels I Recast.3 Accordingly, the EC/Denmark agreement is also discussed in Chapter 11.

(c)  The Brussels Convention

In broad terms, the rules on jurisdiction contained in the Brussels Convention are applied where:

  1. (a)  the matter is within the scope of the Convention (most civil and commercial matters); and

  2. (b)  the defendant is domiciled in one of the territories of the Contracting States4 which fall within the territorial scope of the Brussels Convention and are excluded from the Brussels I Regulation and Brussels I Recast.5 The territories in question are (in relation to France) the French overseas territories, such as New Caledonia and Mayotte, and (in relation to the Netherlands) Aruba.6 Even if the defendant is not so domiciled, certain provisions in the Convention will still apply, eg where the case involves title to land in one of the French overseas territories or Aruba, or where there is an agreement conferring jurisdiction on the courts of one of the French overseas territories or Aruba.

(p. 189) The Brussels Convention is discussed in Chapter 11.

(d)  The Lugano Convention

In broad terms, the rules on jurisdiction contained in the Lugano Convention are applied in the United Kingdom and in other European Union Member States where:

  1. (a)  the matter is within the scope of the Convention (most civil and commercial matters); and

  2. (b)  the defendant is domiciled in an EFTA State other than Liechtenstein7 (ie Iceland, Norway or Switzerland).8 Even if the defendant is not so domiciled, certain provisions in the Convention will still apply, eg where the case involves title to land in an EFTA State other than Liechtenstein or where there is an agreement conferring jurisdiction on the courts of an EFTA State other than Liechtenstein.

The terms of the Lugano Convention have been aligned with those of the Brussels I Regulation (but not, at present, the Brussels I Recast) and are accordingly also discussed in detail in Chapter 11.

2.  Jurisdiction Under the Modified Regulation

The Civil Jurisdiction and Judgments Act 1982 applies a modified version of the Brussels I Regulation in cases where:

  1. (a)  the matter is within the scope of the Brussels I Regulation (most civil and commercial matters); and

  2. (b)  the defendant is domiciled in the United Kingdom or the proceedings are of a kind where jurisdiction is allocated to the courts of a part of the United Kingdom regardless of domicile, eg the case involves title to land in part of the United Kingdom.

The modified version of the Brussels I Regulation rules serves to allocate jurisdiction between the component legal orders of the United Kingdom (England and Wales, Scotland, and Northern Ireland). Because of its close links with the Brussels I Regulation, the Modified Regulation is also discussed in detail in Chapter 11.

3.  Jurisdiction Under the Traditional Rules

The traditional rules on jurisdiction are still applicable, in practical terms,9 in cases falling outside the Brussels/Lugano system and the Modified Regulation. Before the advent of the Brussels/Lugano system and the Modified Regulation the traditional rules were applied in all cases, and their historical roots make it appropriate to refer to them as the traditional rules.

(p. 190) Jurisdiction under the traditional rules involves three major issues:

(a)  Whether the English courts have power to hear the case

As will be seen in Chapter 12, the competence of the courts to hear a case is a procedural matter and is dependent on the service of a claim form on the defendant. A claim form can be served on the defendant if he is present within the jurisdiction, if he submits to the jurisdiction of the English courts, or if the courts authorise service of a claim form out of the jurisdiction under rule 6.36 and Practice Direction 6B of the Civil Procedure Rules. Whether a court will permit service out of the jurisdiction is a matter of discretion pursuant to the doctrine of forum conveniens.

(b)  Whether the court will decline jurisdiction or stay the proceedings, or restrain foreign proceedings

Notwithstanding that it is competent to hear the case, the court can decline jurisdiction or stay the proceedings in cases where the doctrine of forum non conveniens applies or where a decision to proceed with the case would be contrary to an exclusive jurisdiction clause, and the court must decline jurisdiction if proceeding would be contrary to an arbitration clause. The courts’ powers to refuse to exercise jurisdiction will be discussed in Chapter 13. If the English courts determine that they should exercise jurisdiction, the courts may issue an anti-suit injunction to restrain a party from commencing or continuing foreign proceedings—the circumstances in which such an order can and will be made are also discussed in Chapter 13.

(c)  Whether there is a limitation upon the exercise of jurisdiction

Even where there has been service of process, the jurisdiction of the courts is subject to certain limitations, the effect of which is to render the court incompetent to determine the issue. These limitations relate to the subject matter of the issue (eg the case involves foreign land); the kind of relief sought (eg the case involves granting a divorce); and the persons between whom the issue is joined (eg the defendant is a foreign sovereign state). There are also certain statutory limitations on jurisdiction which derive from international conventions (eg the case involves international carriage by air). These limitations will be discussed in Chapter 14.

4.  The Hague Convention on Choice of Court Agreements

In 2015, the European Union ratified the Hague Convention on Choice of Court Agreements 2005, both in its own right and on behalf of each of the Member States (excluding Denmark). The Convention overrides both European Union and national law rules of jurisdiction to the extent of any inconsistency, although does not affect the Brussels I Recast for disputes which are internal to the European Union. The purpose of the Convention is to give greater effectiveness to jurisdiction agreements in favour of the courts of Convention states. At present, Mexico and Singapore have also ratified the Convention, and the USA and Ukraine have signed but not yet ratified. Although not strictly part of the Brussels/Lugano System, the Convention forms part of European Union law on jurisdiction and is therefore also discussed in Chapter 11.

Footnotes:

1  Tehrani v Secretary of State for the Home Department [2006] UKHL 47 at [66] (per Lord Scott, [2007] 1 AC 521; Fourie v Le Roux [2007] UKHL 1 at [25] (per Lord Scott, [2007] 1 WLR 320.

2  Including the territory of the so-called ‘Turkish Republic of Northern Cyprus’: Apostolides [2009] EUECJ C-420/07; Hartley (2009) 58 ICLQ 1013; De Baere (2010) 47 CMLR 1123.

3  OJ 2013 L 79/4.

4  At the moment the Contracting States to the Brussels Convention are the original fifteen Member States.

5  Art 68(1). Territories are excluded from the Brussels I Regulation and Brussels I Recast pursuant to Art 299 of the EC Treaty.

6  See Layton and Mercer, paras 11.061–11.071. See also Kruger, paras 1.026–1.037.

7  Liechtenstein became an EFTA State in 1991, but has not become a party to the Lugano Convention.

8  It is possible for non-EFTA/European Union States to become parties to the Convention.

9  In terms of theory the position is more difficult since Art 6 of the Brussels I Recast provides that, if the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member state shall, subject to Arts 18(1), 21(2), 24 and 25, be determined by the national private international law rules of that Member State. This has led to the idea that there is only one source of jurisdiction rules, namely the Brussels I Recast (and previously the Brussels I Regulation), at least for cases falling within its scope. See Opinion of the Court of Justice 1/03 Competence of the Community to conclude the new Lugano Convention [2006] ECR-I1145 at para 148 and generally Kruger, paras 1.052–1.057.