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 group 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 regulations have also helped its evolution.
Definition: The phrase 'Jurisdiction' can have several meanings, but when understood in context with the Court of law it generally means the power or authority of a specific Court to ascertain the difficulties before it on which a decision is sought. The principles on Jurisdiction play a pivotal role in determining the Court's ability to address the difficulties in a given matter.
Jurisdictional issues become complex on the involvement of multiple Court having jurisdiction. This is certainly a location of concern not merely for the international trade or business (who might be put in an invidious position where they're unacquainted with the extent of the liability) but in addition 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 common law at its core) has received and still continues to really have a formidable place in expounding regulations on several issues, mostly due to the availability 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 time frame become an authority regarding the situation determined therein. Just before 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 a substantial role although it may have been just about remedial in nature. However, this indicates logical allowing the judge made law to check the legislation whenever it is so required by the change in circumstances which may be given effect to with relative ease as when compared to the legislation process.
Ahead of the advent of the Brussels/Lugano system and the Modified Regulation the standard rules were applied in most cases, and it is their historical roots that make it appropriate to refer for them as the standard 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 the same system of rules on jurisdiction);
2. The Modified Regulation which allocates jurisdiction within U.K under certain circumstances; and
3. The traditional English rules.
You can find other sets of rules on jurisdiction just like the EC/Denmark Agreement on jurisdiction and the those contained in the Lugano Convention; but their ambit is restricted in application to the cases where the defendant is domiciled in Denmark in case of the former and in an EFTA member state in case 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 put more importance on the legislative work compared to judge made laws. Apparently, for the EC, it is more critical that the essential edifice of the legal system must be based in a codified structure which it defends on the grounds of ease of 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 know the differences that exist between the respective legal systems and their values, that's, a fundamental difference in the types of approaching the difficulties even in cases where 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 principles of jurisdiction must certanly be highly predictable and founded on the principle that jurisdiction must generally be centered on defendants domicile and jurisdiction must always be accessible on this ground save in few defined situations...'
Whereas, the only real reference to flexibility in the Regulation is contained in 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.
According to the EC law on jurisdiction, it appears that this kind of 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 principal objective of harmonizing the laws on jurisdiction within the territory of its member states and therefore helps it 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 as well as the standard English law may well have their particular justifications and reasons for carrying out a particular system; but it is submitted this is apparently not just a matter of difference in types of approach or attitude but in addition a matter of prioritization of the objectives by both EC law and traditional English law on jurisdiction. The listing of cases mentioned hereinafter for the advantage of elucidating the topic under discussion are, as shall be evident, decided under the Brussels Convention which may be used 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 could be the part 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 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 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 merely to cases that fall beyond your scope of Art.1 of the Regulation but also to those who fall within its scope where the defendant is not domiciled in virtually any member state and the jurisdiction is not allocated by any 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 a lawn that another court is just a appropriate forum). Jurisdiction under this case is dependent on the presence of the defendant in the country whereby the claim form might be served to him. immigrants
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 the court considering England to be the most appropriate forum (despite of absence of reasons under i. or ii. on the basis 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 the applicability of the EC law on jurisdiction doesn't be determined by 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 helps it be mandatory for the court of an associate state to ascertain the jurisdictional issues and other issues where the defendant is domiciled in its jurisdiction.
The Brussels Regulation does offer instances where the defendant can be sued in another member state though he is not domiciled in that particular state; but these cases have now been very explicitly outlined in the regulation leaving little if any scope for the exercise of discretion by the judge. However, Art.4 of the Regulation provides that 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 any of 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 theory that there is now only 1 supply 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 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 exactly like under forum non conveniens. Forum conveniens is decided in two stages, namely:
i. Where in the 1st stage the claimant should show that England is an appropriate forum (considering, among other activities, the type of dispute, issues involved and in cases where relevant, the availability of witnesses.
ii. At the second stage the claimant must establish that even when there is another forum, justice won't be achieved there, showing thereby that England could be the appropriate forum.
However, England may possibly not be the appropriate forum where the claimant will simply 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 any of the provisions thereof (e.g. Arts.2 or 5) it cannot refuse jurisdiction on the grounds that various other court is best suited to ascertain the situation, 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 so 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 reason behind such mandatory compliance could be the promotion of legal certainty and predictability and the free flow of judgments between the member states on the basis of the codified rules in the Regulation that are not dependent on any judge's discretion.