Introduction: This paper endeavours to compare the traditional English law and the European Community (EC) law on jurisdictional values, in that, it seeks to know and elucidate why the former group of jurisdictional DRT advocate rules value flexibility and justice while 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 the law have 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 capability or authority of a certain Court to find out the issues before it on which a decision is sought. The rules on Jurisdiction play a pivotal role in determining the Court’s ability to handle the issues 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’re unacquainted with the extent of these liability) but additionally the sovereign states that seek to trade together without having to spoil their amicable relationship.
The English Law: The English legal system (having the normal law at its core) has received and still continues to have a formidable devote expounding the law on several issues, mostly due to the 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 time period become an authority with regard to the matter determined therein. Ahead of 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 an important role although it could have been more or less remedial in nature. However, this indicates logical allowing the judge made law to check the legislation whenever it’s so required by the change in circumstances which is often given effect to with relative ease as in comparison with the legislation process.
Prior to the advent of the Brussels/Lugano system and the Modified Regulation the traditional rules were applied in most cases, and it’s their historical roots making it appropriate to refer for them as the traditional English law/rules.
The jurisdiction of English courts is determined by different regimes:
- 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);
- The Modified Regulation which allocates jurisdiction within U.K under certain circumstances; and
- The original English rules.
You can find 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 restricted in application to the cases where the defendant is domiciled in Denmark in case there is the former and in a EFTA member state in case there is the latter. There is also the Brussels Convention which pertains to Denmark alone.
The EC law: In comparison to the traditional 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 basic edifice of these legal system must certanly be situated in a codified structure which it defends on the lands of easy understanding amongst other reasons. Whereas, English laws seem to put more focus on having a common law or judge made law background. On this anvil, one begins to know the differences that exist between the respective legal systems and their values, that is, a simple difference in the method of approaching the issues even in cases where their objectives might be same.
The EC law on jurisdiction is more inclined towards the significance of predictability and certainty in the rules than towards matters like justice and flexibility as could 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 sole reference to flexibility in the Regulation is within the 26th recital wherein it gives that the rules 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 appears that this kind of requirement of predictability is required for parties to a dispute to learn 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 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 traditional English law may well have their particular justifications and reasons for following a particular system; but it’s submitted this seems to be not really a matter of difference in method of approach or attitude but additionally 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 will be evident, decided beneath the Brussels Convention which is often employed for interpreting the rules beneath the Regulation.
Comparison of EC Law v English Law:
- Bases of Jurisdiction: Probably the most significant difference that exists between the traditional English laws and the EC law on jurisdiction could be the component 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 beneath the English traditional rules the assumption of jurisdiction is discretionary.
The Regulation applies simply to matters which can be civil and commercial in nature and not to those that have been explicitly excluded from its application (for e.g. Cases regarding arbitration, succession, wills and bankruptcy have been excluded from the application form of the Regulation). Whereas, the traditional English rules apply not just to cases that fall away from scope of Art.1 of the Regulation but and to the ones that fall within its scope where in actuality the defendant is not domiciled in virtually any member state and the jurisdiction is not allocated by the rules which apply, regardless of domicile.
A. In the traditional 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 floor that another court is just a appropriate forum). Jurisdiction under this situation is influenced by the 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 influenced by the court giving permission to serve process out of its jurisdiction) where in actuality the court considering England to be probably the 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 with this provision, an operating similarity with Arts.5 & 6 of the Regulation.
B. Jurisdiction beneath the EC Law: Except for several instances where in actuality 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 helps it be mandatory for the court of a part state to find out the jurisdictional issues and other conditions where in actuality the defendant is domiciled in its jurisdiction DRT advocate.