Introduction: This paper endeavours to compare the standard English law and the European Community (EC) law on jurisdictional values, because, it seeks to know 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 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 term 'Jurisdiction' might have several meanings, but if understood in context with the Court of law it generally means the capability or authority of a certain Court to find out the difficulties before it which a decision is sought. The principles 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 multiple Court having jurisdiction. This is certainly an area of concern not just for the international trade or business (who might be put in a invidious position where they are unacquainted with the extent of their liability) but also the sovereign states that seek to trade with each other without having to spoil their amicable relationship.
The English Law: The English legal system (having the normal law at its core) has already established and still continues to have a formidable devote expounding what the law states on several issues, mostly because of the 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 period of time 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 a significant role although it could have been pretty much remedial in nature. However, it appears logical to allow the judge made law to try the legislation whenever it's so required by the change in circumstances which can be given effect to with relative ease as when compared to the legislation process.
Before the advent of the Brussels/Lugano system and the Modified Regulation the standard rules were applied in most cases, and it's their historical roots which make it appropriate to refer for them as the standard 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 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 restricted in application to the cases when the defendant is domiciled in Denmark in the event of the former and in a EFTA member state in the event of the latter. There's also the Brussels Convention which relates to Denmark alone.
The EC law: In comparison to the standard English law, the European Community seems to place more importance on the legislative work compared to judge made laws. Apparently, for the EC, it's more critical that the essential edifice of their legal system ought to 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 emphasis on having a typical law or judge made law background. With this anvil, one begins to know the differences that exist involving the respective legal systems and their values, that is, a fundamental difference in the types of approaching the difficulties even 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 guidelines than towards matters like justice and flexibility as could be understood upon reading the 11th recital of the Regulation that states: 'The principles 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 around 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 gives that the guidelines in the regulation might be flexible and then the extent of allowing specific procedural rules of member states.
In line with the EC law on jurisdiction, it seems that this particular requirement of predictability is essential 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 objective of justice for the parties. The EC law in addition to the standard English law may well have their own justifications and reasons for carrying out a particular system; but it's submitted this is apparently not just a matter of difference in types 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 benefit of elucidating the topic under discussion are, as will probably be evident, decided under the Brussels Convention which can be useful for interpreting the guidelines under the Regulation.
Comparison of EC Law v English Law:
1. Bases of Jurisdiction: Probably the most significant difference that exists between the standard English laws and the EC law on jurisdiction may be 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 basically 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 and then matters which are civil and commercial in nature and to not those which have been explicitly excluded from its application (for e.g. Cases pertaining to arbitration, succession, wills and bankruptcy have now been excluded from the application of the Regulation). Whereas, the standard English rules apply not just 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 fact the defendant isn't domiciled in virtually any member state and the jurisdiction isn't allocated by some of the rules which apply, aside from domicile.
A. In the standard 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 a more appropriate forum). Jurisdiction under this case is dependent on the clear presence of the defendant in the country 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 dependent on the court giving permission to serve process out of its jurisdiction) where in fact the court considering England to be probably 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, a functional 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 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 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 little or no 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 isn't domiciled in some of the member states. This provision while giving scope for the applicability of the standard rules has at once also given rise to the idea that there is now only 1 supply of jurisdictional rules, namely the Brussels Regulation. DUI
C. Mandatory rules under EC law v Forum Conveniens:
Forum conveniens: upon bringing a motion in England, the claimant needs to prove that it's the forum conveniens, that is, the problem 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 set in two stages, namely:
i. Where in the first stage the claimant should show that England is a proper forum (considering, among other things, the type of dispute, issues involved and in cases when relevant, the accessibility to witnesses.
ii. At the second stage the claimant must establish that even when there is another forum, justice will not be done there, showing thereby that England may be the more appropriate forum.
However, England may not be the right forum where in fact the claimant will simply be deprived of some legitimate personal or juridical advantage such as 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 grounds that various other court is most effective to find out the problem, showing the mandatory nature of the rules.
In case of 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) 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 grounds of justice or convenience or any like reason. Paraphrasing the reasoning of the ECJ, the explanation for such mandatory compliance may 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 which are not dependent on any judge's discretion.
