Introduction: This paper endeavours to compare the standard English law and the European Community (EC) law on jurisdictional values, for the reason that, it seeks to understand 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 regions of differences between these jurisdictional regimes with the help 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' might have several meanings, but when understood in context with the Court of law it generally means the ability or authority of a particular Court to find out the difficulties before it where a determination is sought. The principles on Jurisdiction play a pivotal role in determining the Court's ability to address the difficulties in certain matter.
Jurisdictional issues become complex on the involvement of more than one Court having jurisdiction. This is certainly an area of concern not only for the international trade or business (who may be put within an invidious position where they are unaware of the extent of these liability) but in addition the sovereign states that seek to trade together and never having to spoil their amicable relationship.
The English Law: The English legal system (having the common law at its core) has received and still continues to really have a formidable devote expounding what the law states on several issues, mostly because of the 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 period of time become an authority regarding the matter determined therein. Just before entering the European Union (EU) by signing the document of accession in 1978, in the U.K, along with the judge made laws, even legislations played a significant role though it may have been just about remedial in nature. However, it seems 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 with the legislation process.
Before the advent of the Brussels/Lugano system and the Modified Regulation the standard rules were applied in every cases, and it's their historical roots making it appropriate to refer to 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 an identical system of rules on jurisdiction);
2. The Modified Regulation which allocates jurisdiction within U.K under certain circumstances; and
3. The traditional English rules.
There are other sets of rules on jurisdiction such as the EC/Denmark Agreement on jurisdiction and the those included in the Lugano Convention; but their ambit is restricted in application to the cases when the defendant is domiciled in Denmark in case there is the former and within an EFTA member state in case there is the latter. There is also the Brussels Convention which relates to Denmark alone.
The EC law: On the other hand to the standard English law, the European Community seems to position more importance on the legislative work compared to judge made laws. Apparently, for the EC, it's more critical that the fundamental edifice of these legal system must be situated in a codified structure which it defends on the lands of simple understanding amongst other reasons. Whereas, English laws seem to put more increased exposure of having a typical law or judge made law background. With this anvil, one begins to understand the differences that exist between the respective legal systems and their values, that's, a fundamental difference in the manner of approaching the difficulties even yet in cases when their objectives may be same.
The EC law on jurisdiction is more inclined towards the importance 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 centered on defendants domicile and jurisdiction must always be available on this ground save in few defined situations...'
Whereas, the only mention of flexibility in the Regulation is included in the 26th recital wherein it provides that the guidelines in the regulation may be flexible only to the extent of allowing specific procedural rules of member states.
In line with the EC law on jurisdiction, it would appear that this specific requirement of predictability is essential for parties to a dispute to learn exactly within which jurisdiction(s) they can 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 makes it mandatory to uphold the strict accuracy to its principle while giving secondary status to the aim of justice for the parties. The EC law along with the standard English law may very well have their very own justifications and reasons for carrying out a particular system; but it's submitted this is apparently not just a matter of difference in manner of approach or attitude but in addition a matter of prioritization of the objectives by both 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 shall be evident, decided under the Brussels Convention which can be employed for interpreting the guidelines under the Regulation.
Comparison of EC Law v English Law:
1. Bases of Jurisdiction: The absolute most significant difference that exists between the standard English laws and the EC law on jurisdiction is the section of discretion that the respective body of law gives to the judges in determining the jurisdictional issues. Beneath 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 only to matters which are civil and commercial in nature and to not those which were explicitly excluded from its application (for e.g. Cases related to arbitration, succession, wills and bankruptcy have already been excluded from the application form of the Regulation). Whereas, the standard English rules apply not only to cases that fall outside the scope of Art.1 of the Regulation but and to those who fall within its scope where in actuality the defendant isn't domiciled in just about any member state and the jurisdiction isn't allocated by 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 within England (though the court may stay the proceedings on a lawn that another court is a appropriate forum). Jurisdiction under this example is dependent on the presence of the defendant in the united kingdom 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 absence 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, an operating 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 does not depend 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 makes it mandatory for the court of an associate state to find out 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 could be sued in another member state though he's not domiciled in that specific state; but these cases have already 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 the member states. This provision while giving scope for the applicability of the standard rules has at the same time also given rise to the idea that there's now only one source 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 needs to prove that it is the forum conveniens, that's, 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 set 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 when relevant, the option of witnesses.
ii. At the second stage the claimant must establish that even if there is another forum, justice will not be achieved there, showing thereby that England is the appropriate forum.
However, England may possibly not be the right forum where in actuality the claimant is only going to 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 the provisions thereof (e.g. Arts.2 or 5) it cannot refuse jurisdiction on the lands that some other court is most effective to find out the matter, showing the mandatory nature of the rules.
In the event 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) regardless of the actual jurisdiction being in the court 2nd seized. Estate
These rules are mandatory in so far as they fall within the scope of Art.1 of the Regulation; no deviation thereof is permitted on the lands 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 cornerstone of the codified rules in the Regulation which are not dependent on any judge's discretion.