Comparison of the primary English Laws & European society (Ec) Laws on Jurisdictional Values

First Convenience Bank - Comparison of the primary English Laws & European society (Ec) Laws on Jurisdictional Values

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Introduction: This paper endeavours to collate the former English law and the European society (Ec) law on jurisdictional values, in that, it seeks to understand and explicate why the previous set of jurisdictional 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 feature the areas of differences between these jurisdictional regimes with the aid of authorities like requisite Court cases and books that have besides explaining or simplifying the law have also helped its evolution.

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Definition: The word 'Jurisdiction' can have several meanings, but if understood in context with the Court of law it commonly means the quality or authority of a single Court to rule the issues before it on which a decision is sought. The rules on Jurisdiction play a pivotal role in determining the Court's quality to address the issues in a given matter.

Jurisdictional issues become complicated on the involvement of more than one Court having jurisdiction. This is as a matter of fact an area of concern not only for the international trade or enterprise (who may be put in an invidious position where they are unaware of 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 law (having the base law at its core) has had and still continues to have a formidable place in expounding the law on several issues, mostly due to the availability of intellectuals and experts that have helped it in doing so.

Traditional English law (the base law) is basically the case laws that have over duration of time become an authority with regard to the matter carefully therein. Prior to 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 requisite role though it may have been more or less corrective in nature. However, it seems logical to allow the judge made law to test the legislation whenever it is so required by the change in circumstances which can be given ensue to with relative ease as in comparison with the legislation process.

Before the coming of the Brussels/Lugano law and the Modified Regulation the former rules were applied in all cases, and it is their historical roots that make it thorough to refer to them as the former English law/rules.

The jurisdiction of English courts is carefully by distinct regimes:
1. The Brussels I Regulation (hereinafter the 'Regulation') (an amended version of the Brussels practice but notwithstanding the amendments it applies a similar law of rules on jurisdiction);
2. The Modified Regulation which allocates jurisdiction within U.K under unavoidable circumstances; and
3. The former English rules.

There are other sets of rules on jurisdiction like the Ec/Denmark business transaction 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 previous and in an Efta member state in case of the latter. There is also the Brussels practice which applies to Denmark alone.

The Ec law: In dissimilarity to the former English law, the European society seems to place more point on the legislative work than the judge made laws. Apparently, for the Ec, it is more leading that the basic edifice of their legal law should 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 emphasis on having a base law or judge made law background. On this anvil, one begins to understand the differences that exist between the respective legal systems and their values, that is, a basic dissimilarity in the manner of approaching the issues even in cases where their objectives may be same.

The Ec law on jurisdiction is more inclined towards the point of predictability and certainty in the rules 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 very predictable and founded on the principle that jurisdiction must commonly be based on defendants domicile and jurisdiction must all the time be available on this ground save in few defined situations...'

Whereas, the only mention of flexibility in the Regulation is contained in the 26th recital wherein it provides that the rules in the regulation may be flexible only to the extent of allowing exact procedural rules of member states.

According to the Ec law on jurisdiction, it seems that this single requirement of predictability is requisite for parties to a dispute to know exactly within which jurisdiction(s) they can sue and be sued. The Ec law gives priority to the former objective of harmonizing the laws on jurisdiction within the territory of its member states and therefore makes it mandatory to uphold the precise accuracy to its principle while giving secondary status to the objective of justice for the parties. The Ec law as well as the former English law may very well have their own justifications and reasons for following a single system; but it is submitted that this seems to be not only a matter of dissimilarity in manner of advent or attitude but also a matter of prioritization of the objectives by both the Ec law and former English law on jurisdiction. The list of cases mentioned hereinafter for the benefit of elucidating the topic under discussion are, as shall be evident, decided under the Brussels practice which can be used for interpreting the rules under the Regulation.

Comparison of Ec Law v English Law:
1. Bases of Jurisdiction: The most requisite dissimilarity that exists between the former English laws and the Ec law on jurisdiction is the element 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 largely mandatory with the court not being free to decline jurisdiction; whereas under the English former rules the assumption of jurisdiction is discretionary.

The Regulation applies only to matters that are civil and commercial in nature and not to those that have been explicitly excluded from its application (for e.g. Cases pertaining to arbitration, succession, wills and bankruptcy have been excluded from the application of the Regulation). Whereas, the former English rules apply not only to cases that fall exterior the scope of Art.1 of the Regulation but also to those that fall within its scope where the defendant is not domiciled in any member state and the jurisdiction is not allocated by any of the rules which apply, regardless of domicile.

A. In the former 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 the ground that another court is a more thorough forum). Jurisdiction under this situation is dependent on the nearnessy of the defendant in the country 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 the court inspecting England to be the most thorough forum (despite of absence of reasons under i. Or ii. On the basis of some association between England and the defendant. There seems on a perusal of this provision, a functional similarity with Arts.5 & 6 of the Regulation.

B. Jurisdiction under the Ec Law: Except for unavoidable instances where 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 a member state to rule the jurisdictional issues and other issues where the defendant is domiciled in its jurisdiction.

The Brussels Regulation does contribute for instances where the defendant can be sued in another member state though he is not domiciled in that single state; but these cases have been very explicitly outlined in the regulation leaving wee or no scope for the rehearsal 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) rehearsal its former 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 former rules has at the same time also given rise to the idea that there is 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 has to prove that it is the forum conveniens, that is, the matter can be tired therein in the interest of justice; and the relevant factors in inspecting this are the same as under forum non conveniens. Forum conveniens is carefully in two stages, namely:
i. Where in the 1st stage the claimant should show that England is an thorough forum (considering, among other things, the nature of dispute, issues complicated and in cases where relevant, the availability of witnesses.
ii. At the 2nd stage the claimant must make that even if there is another forum, justice will not be done there, showing thereby that England is the more thorough forum.

However, England may not be the thorough forum where the claimant will only be deprived of some legitimate personal or juridical benefit like a higher payment award.

Mandatory rules under Ec law: Unlike the former 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 some other court is best grand to rule the matter, showing the mandatory nature of the rules.

In case of lis pendens (Art.27) or proceedings in 2 or 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.

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 theorize for such mandatory compliance is the promotion of legal certainty and predictability and the free flow of judgments amongst the member states on the basis of the codified rules in the Regulation which are not dependent on any judge's discretion.

2. Forum non conveniens and lis pendens:

A. Forum non conveniens: Jurisdiction under the former rules also depends on whether the court shall decline jurisdiction or stay the proceedings. An English court shall in determining jurisdiction under its former rules try to ascertain which is the more thorough forum and may even stay its proceedings in cases where it thinks that another forum is best grand for the case and in doing so it employs what may be called the basic test i.e. whether it is in the interest of the parties and would meet the interest of justice.

However, it was the Spiliada Case which promulgated another test i.e. 'the two stage test' for deciding the more thorough forum for determining the case before the court. Where the court considers, in the 1st stage which is prima facie the most thorough forum (burden being on the defendant) on the basis of connecting factors like: (territorial connection) place where the parties reside, the law applicable, the availability of witnesses (if any), equilibrium of convenience (applied in Spiliada itself) and where proceedings between the same parties arising out of the same dispute are pending before a foreign court, show how long the trial has been in existence which would be a strong discussion in favour of forum non conveniens where such case is on the verge of resolution one (unlike Art. 27 of the Brussels Regulation, the former rules do not endorse a straightforward 'first come, first serve' approach) and whereas in the 2nd stage (burden shifting on the claimant) upon inspecting the relevant connecting factors it thinks that the dispute is more closely linked with a foreign court.

B. Lis alibi pendens: The religious doctrine of Lis Pendens under Art.27 of the Brussels Regulation makes it mandatory for the court which is second seized (in proceedings having same cause of activity and same parties and the dispute is before the courts of two or more member states) to stay its proceedings in favour of the court first seized until such time till the latter has not established its jurisdiction notwithstanding that the court second seized may as a matter of fact have prima facie grounds for the rehearsal of its jurisdiction (For example: Arts. 22 and 23).

In dissimilarity to the former English law, the Brussels Regulation gives as a matter of fact no discretion to the judge to stay its own proceedings and grant jurisdiction in favour of another court on grounds of availability of a more thorough forum. For instance, in the Owusu case wherein the European Court of Justice held that Brussels practice precludes a Court of a contracting state from declining jurisdiction conferred on it by Art.2 on the ground that a court of a non-contracting state would be more thorough forum for the trial of the activity even if the jurisdiction of no other state is in issue or the proceedings have no connecting factors to any other contracting state. This regardless of the fact that the person putting up a plea of forum non conveniens is able to prove that he may not be able to fetch justice in a foreign court or that he is in fact devoid of any passage to productive justice.

The religious doctrine of Lis Pendens may seem like a simplified manner of approaching simultaneous proceedings in distinct courts vis-à-vis the religious doctrine of forum non conveniens which is dependent on the judges discretion; and also seems logical in cases where there could be a possibility of having two conflicting decisions as may happen under the former rules. At the same time it also seems arbitrary in that it makes mandatory for the court first seized to rule upon its jurisdiction before the court second seized, regardless of any pressing evidence adduced that places jurisdiction elsewhere.

The religious doctrine of lis pendens seeks to preserve the object of the drafters of the Brussels Regulation which is to promote reliance in the internal market, to sell out disparities between national laws on the jurisdictional front; and to expand the reliance of persons domiciled in the member states under the present jurisdictional set-up, so as to safeguard their legal and large monetary interests and this in turn leads to the creation of legal certainty which view or consideration is supported by several bearers of intellect in the involved field of study.

Art. 27 of the Regulation requires the court second seized to stay its proceedings until the court first seized has established its jurisdiction. This provision seems to give ample room for parties to commercial matters in single to take benefit of the loopholes available in the legal framework established under the Brussels Regulation which is best explained by explanation of the term 'Italian Torpedo'.

Art. 27 while intending certainty has ended up providing an avenue for a rat race of sorts to the court house for the parties having a dispute in civil and commercial matters as well as those that wish to obstruct the policy of justice. A party seeking to prolong the outcome of the dispute can advent the court of a member state which otherwise on the merits of the case may not have the requisite jurisdiction to hear it (e.g. Italy); and where the hearing and legal measurement of only the jurisdictional issues may perhaps take long enough to frustrate the objectives of the party seeking an early resolution or remedy for the mischief of the other party.

In the Transporti Castelletti case where a Danish shipping enterprise had to contest a jurisdictional issue before the Italian court for eight years when the receiver of the cargo under its Bill of Lading brought proceedings in Italy this notwithstanding the fact that the Bill of Lading which it delivered to an Argentinean shipper for voyage from Argentina to Italy had explicitly mentioned a 'choice of court clause' favouring England. This outcome does beg the interrogate if there are any provisions that guarantee a fair and quick delivery of justice. This requirement seems to have been overlooked even by the European Court of Justice, specially, with regard to the lack of efficiency which the Italian courts have shown in dispensing quick remedies.

This issue was once again put to test in the Erich Gasser GmbH v Misat Srl which was pertaining to patent proprietary and also complicated a 'choice of court agreement' (Art.17 of the Brussels Convention) whereby the parties are free to pick which court shall have exclusive jurisdiction or if the parties wish they may even make it a non-exclusive jurisdiction clause by stating the courts that shall have jurisdiction.

Gasser an Austrian firm and Misrat an Italian enterprise had submitted to the exclusive jurisdiction of an Austrian court by virtue of statement granting jurisdiction to the Austrian court contained in all invoices transacted under by the parties. But knowing that there was a possibility that Gasser may file a suit under the selection of court agreement, Misat with the intent to prolong the proceedings and the outcome of the case sought to invoke the jurisdiction of the Italian court and filed a suit there thereby production it the court first seized of the matter.

The case was pending before the Italian court for a duration of eight years naturally to have its jurisdiction established though it could be seen from the invoices transacted between the parties to the dispute that there was an explicit clause which was as per the provisions of Art.23 namely, i. The business transaction was in writing; ii. In form with accords with practices which the parties have established between themselves; or iii. In international trade or industry in a form which accords with a usage of which the parties are ought to have been aware and which is in widely known in such trade or industry or commonly observed by the parties to the contract of the type complicated in the single trade or commerce.

3. Preclusion of jurisdiction under the English Law and Ec law: Under the former English law, when the court finds itself to be the more thorough forum it may grant an anti-suit injunction i.e. An injunction restraining a party from instituting or pursuing proceedings in another court, which is commonly sought by defendants in foreign proceedings praying that the matter be decided in England where the grounds for injunction can include: unconscionable behavior, ends of justice and contractual reasons i.e. Arbitration agreement.

In dissimilarity to the English law under the Brussels Regulation the court 1st seized will rule its jurisdiction first and the courts 2nd seized shall (despite having jurisdiction over the matter on all relevant grounds) stay its own proceedings and not be permitted to issue any anti-suit injunction and will have to await the measurement of jurisdiction by the court first seized. This despite the fact that the proceedings in the court first seized might be brought in bad fait and to frustrate the proceedings of the court second seized. (Based on the view of the Ecj that the states must trust each other, which seems like allowing the interest of justice in favour of an individual, as in Turner v Grovit to be overlain by the interest of the state)

Scope of jurisdiction in recognition and compulsion of judgments: A court cannot identify or inflict a judgment without the requisite jurisdiction. The set of rules applicable would depend primarily on the country where the judgment was given. Recognition under the former law operates without impediments as regards judgments from many countries including many of the Middle Eastern countries, the non-common wealth countries including therein the Us, Asia and Africa. compulsion under the base law is dependent on bringing commonplace proceedings, whereas, the statutory regimes wish exact procedures i.e. Registration.

In dissimilarity to the English law, under the Ec law on recognition and compulsion contained in lesson Iii of the Regulation, jurisdiction is available only in civil and commercial matters; where the judgment is given by the court of a member state, the Ec law will only give recognition and inflict those judgments that are given under the Regulation. Where unlike the base law there is no extra policy for recognition and enforcement; yet the estimate of defenses, are limited.

Critical Analysis: One requisite aspect in favour of forum non conveniens is the noble and preeminent objective namely, the interest of justice, which would have rightly served the need of cases like Gasser and Turner v Grovit had the objective of the Ec law been so. In that, the requirement of maintaining comity amongst nations is given preference over doing justice to the parties, a codified structure and interpretation thereof seems to overrule the requirement of practicality and logic.

Due to cases like Gasser, there is a possibility that the reasoning of the European Court of Justice may be able to change the meaning behind the maxim pacta sunt servanda giving rise to instances where the terms contained in the express contracts like, jurisdiction business transaction may be ignored or subverted in chase of sinister objectives like causing delays; disappointment of commercial enterprise and cause heavy losses.

There are unavoidable provisions in the Regulation (for instance Art.22 (4)) that run contrary to the objective of the Ec law as stated hereinbefore, while leaving many questions unanswered. It may also be argued that the definition of lis pendens in Art.27 is quite technical and mechanical, being hinged on the 1st seized rule implying a first come first serve basis of justice, whereas in the former English laws there is no requirement of a definition; can deal with most problems with the help of discretionary rules. But matters like anti-suit injunctions under the former rules run contrary to contemporary objectives like comity of nations

The Regulation excoriates the application of the domestic laws on jurisdiction by member states under circumstances where the Regulation is applicable. Though the intention is to help parties to civil and commercial matters see their proprietary and liabilities lie; but in doing so the Ec law has in fact taken away much of the English Court's discretionary power, as is obvious from the outcome of the Owusu case.

Conclusion: It is submitted that it is not only the dissimilarity of attitudes or manner of advent that differentiates the former English law and the Ec law on jurisdiction; but also the nature of these rules which as regards the Ec law on jurisdiction is mandatory unlike- the former English law which is discretionary.

There have been instances wherein, on the basis of the former rules on jurisdiction, the English Courts have assumed jurisdiction in cases where it was clearly not the most thorough court as per its two stage test promulgated in the Spiliada case; yet for the purpose of doing justice to the parties therein it has even given legal aid to the South African citizens on the English tax payers account, which in itself goes to show the extent to which the English court can be flexible.

The objective of the former rules is clear i.e. Achieving justice for the parties to a dispute regardless of any set parameters; but this very factor makes a party to a commercial dispute uncertain of the jurisdictions it may or may not get sued in, which contingency the Regulation endeavours to explicate for the purpose of achieving its objective of construction reliance in the European commercial market.

In light of the foregoing observations, it is submitted, that the former English laws do in fact prefer or value flexibility and justice over certainty and predictability, whilst the Ec law on jurisdiction prefers or values certainty and predictability over flexibility and justice to the parties which is predominantly due to the inclination it has towards their respective objectives which mandates the said preference or prioritization.

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