Introduction: This paper endeavours to compare the original English law and the European Community (EC) law on jurisdictional values, for the reason that, it seeks to comprehend and elucidate why the former pair of jurisdictional rules value flexibility and justice whilst 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' can have several meanings, but if understood in context with the Court of law it generally means the ability or authority of a specific Court to find out the difficulties before it on which a choice is sought. The rules 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 more than one Court having jurisdiction. This is actually an area of concern not just for the international trade or business (who might be put within an invidious position where they're unacquainted with the extent of their liability) but also 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 most popular law at its core) has already established and still continues to have a formidable place in expounding what the law states on several issues, mostly as a result of 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 period of time become an authority regarding the matter determined therein. Prior to entering the European Union (EU) by signing the document of accession in 1978, in the U.K, combined with judge made laws, even legislations played an important role although it might have been just about remedial in nature. However, it appears logical to permit the judge made law to try the legislation whenever it is so required by the change in circumstances which is often given effect to with relative ease as when compared with the legislation process.
Ahead of the advent of the Brussels/Lugano system and the Modified Regulation the original rules were applied in most cases, and it is their historical roots that make it appropriate to refer in their mind as the original 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 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 when the defendant is domiciled in Denmark in the event of the former and within an EFTA member state in the event of the latter. There's also the Brussels Convention which applies to Denmark alone.
The EC law: In comparison to the original English law, the European Community seems to place more importance on the legislative work than the judge made laws. Apparently, for the EC, it is more important that the essential edifice of their legal system ought to be based in a codified structure which it defends on the causes of easy understanding amongst other reasons. Whereas, English laws seem to put more emphasis on having a standard law or judge made law background. With this anvil, one begins to comprehend the differences that exist involving the respective legal systems and their values, that's, a simple difference in the manner of approaching the difficulties even in cases when their objectives might 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 can be understood upon reading the 11th recital of the Regulation that states: 'The rules 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 accessible with this ground save in few defined situations...'
Whereas, the only mention of flexibility in the Regulation is within the 26th recital wherein it offers that the guidelines in the regulation might be flexible simply to the extent of allowing specific procedural rules of member states.
According to the EC law on jurisdiction, it seems that this specific requirement of predictability is necessary 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 aim of justice for the parties. The EC law along with the original English law may very well have their own justifications and reasons for following a particular system; but it is submitted that appears to be not only a matter of difference in manner of approach or attitude but also a matter of prioritization of the objectives by the EC law and traditional English law on jurisdiction. The list of cases mentioned hereinafter for the benefit of elucidating the topic under discussion are, as will be evident, decided beneath the Brussels Convention which is often useful for interpreting the guidelines beneath 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 may be the element 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 largely mandatory with the court not being liberated to decline jurisdiction; whereas beneath the English traditional rules the assumption of jurisdiction is discretionary.
The Regulation applies simply to matters that are civil and commercial in nature and never to those which have been explicitly excluded from its application (for e.g. Cases regarding arbitration, succession, wills and bankruptcy have been excluded from the application of the Regulation). Whereas, the original English rules apply not just to cases that fall beyond your scope of Art.1 of the Regulation but and to those that fall within its scope where in fact the defendant isn't domiciled in any member state and the jurisdiction isn't allocated by the rules which apply, aside from domicile.
A. In the original 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 a lawn that another court is a appropriate forum). Jurisdiction under this case is influenced by the current presence of the defendant in the united states 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 influenced by the court giving permission to serve process out of its jurisdiction) where in fact the court considering England to be the absolute most appropriate forum (despite of lack of reasons under i. or ii. on the foundation of some connection between England and the defendant. There seems on a perusal with this provision, a practical similarity with Arts.5 & 6 of the Regulation. Immigrants
B. Jurisdiction beneath the EC Law: Except for certain 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 member state to find out the jurisdictional issues and other issues where in fact the defendant is domiciled in its jurisdiction.
The Brussels Regulation does give instances where in fact the defendant can be sued in another member state though he is not domiciled in that particular state; but these cases have 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 when the defendant isn't domiciled in the member states. This provision while giving scope for the applicability of the original rules has at once also given rise to the idea that there is now only one supply of jurisdictional rules, namely the Brussels Regulation.
C. Mandatory rules under EC law v Forum Conveniens:
Forum conveniens: upon bringing a motion in England, the claimant has to prove that it is the forum conveniens, that's, the matter 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 decided in two stages, namely:
i. Where in the first stage the claimant should show that England is an appropriate forum (considering, among other activities, the nature of dispute, issues involved and in cases when relevant, the option of witnesses.
ii. At the next stage the claimant must establish that even if there is another forum, justice won't be achieved there, showing thereby that England may be the appropriate forum.
However, England might not be the correct forum where in fact the claimant will simply be deprived of some legitimate personal or juridical advantage such as for instance a higher compensation award.
Mandatory rules under EC law: Unlike the Traditional English rules, beneath 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 various other court is best suited to find out the matter, 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) regardless of 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 causes of justice or convenience or any like reason. Paraphrasing the reasoning of the ECJ, the reason 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 foundation of the codified rules in the Regulation which are not influenced by any judge's discretion.
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