Jurisdiction — overviewIntroduction to jurisdiction

When considering the appropriate jurisdiction for a dispute, it is essential that practitioners are aware of the applicable rules and interpret them correctly. The applicable rules will depend upon which of the following apply:

• the Judgments Regulation

• the Brussels Convention

• the Lugano Convention

• common law

In some instances, practitioners will also need to consider competing jurisdictions. Starting a claim in the wrong jurisdiction can waste time, costs and resources.

Judgments Regulation — application

The Judgments Regulation requires an international element; which can be satisfied by a non member state. It also only applies to 'civil and commercial' matters.

Article 1 of the Judgments Regulation lists a number of exclusions to the regulation including revenue and insolvency matters.

Judgments Regulation — domicile (article 4)

Article 4 of the Judgments Regulation deals with domicile. It does not set out any requirements which are dependant on the claimant's domicile but it does in relation to the defendant. These will vary depending on whether the defendant is an individual, a company or a trust.

Judgments Regulation — contract claims only (article 5)

Article 5 of the Judgments Regulation deals with different types of claims where the claimant can chose to bring proceedings in a jurisdiction in which the defendant is not domiciled. Contract claims require consideration of a number of different issues such as connecting factors, obligations, place of performance, place of delivery. All these issue need to be considered in determining which court has jurisdiction to hear a contract claim.

Judgments Regulation — other types of claims (article 5)

Article 5 of the Judgments Regulation deals with different types of claims where the claimant can chose to bring proceedings in a jurisdiction in which the defendant is not domiciled. Examples of these include maintenance, tort and trusts claims. Each require different considerations in determining which court has jurisdiction to hear the dispute.

Judgments Regulation — outside the defendant's domicile (article 6)

Article 6 of the Judgments Regulation deals with situations where the claimant can chose to bring proceedings in a jurisdiction in which the defendant is not domiciled. Examples include where there are multiple defendants or counterclaims.

Judgments Regulation — exclusive jurisdiction: interpretation and application (article 22)

Article 22 of the Judgments Regulation deals with certain circumstances in which courts will have exclusive jurisdiction irrespective of the parties’ domicile. The Court of Appeal has identified a number of tools practitioners should use when seeking to interpret Article 22. For example ECJ decisions and the Jenard Report 1968. it is important to be aware of each of these different tools and to apply then when seeking to determine whether a dispute is subject to the exclusive jurisdiction of a Member State

Judgments Regulation — exclusive jurisdiction: specific categories (article 22)

Article 22 of the Judgments Regulation deals with certain circumstances in which courts will have exclusive jurisdiction irrespective of the parties’ domicile. Examples of the types of disputes are those concerning immovable property or a company's constitution or the validity of its actions. Article 22 only applies to those domiciled in Member States but has a mandatory application to those who fall within its provisions. The ECJ and English case law has provided guidance to as how what issues to consider when determining whether a dispute falls within the specific categories identified in Article 22.

Judgments Regulation — jurisdiction agreements (article 23)

Article 23 of the Judgments Regulation is concerned with jurisdiction agreements. It states that parties may make an agreement specifying which courts of a Member State have jurisdiction to hear a dispute between them. It is important to be aware of the relevant considerations in determining whether there is a valid agreement.

Judgments Regulation — Submitting to the jurisdiction (article 24)

Article 24 of the Judgments Regulation outlines how defendants automatically submit to the jurisdiction of a Member State’s Court if they enter an ‘appearance’ in that court. The most complex issue regarding Article 24 is what constitutes making an ‘appearance’ in court.

Judgments Regulation — special provisions for specific contracts

The Judgments Regulation contains special provisions for the following contracts:

• insurance (Section 3)

• consumer (Section 4)

• individual contracts of employment (Section 5)

The provisions are aimed at protecting the 'weaker' party being the policy holder, the consumer or the employee. Generally, the weaker party can require a dispute to be resolved in the courts of his own country.

The requirements with respect to jurisdiction agreements in these three areas are much stricter than would otherwise be the case, meaning that such agreements can only be enforced in certain circumstances.

Judgments Regulation — arbitration

Arbitration is specifically excluded from the Judgments Regulation. However, it is important to be aware that the courts have not construed this as ousting the jurisdiction of the court to deal with matters simply on the basis that there is an arbitration agreement. Therefore there are circumstances in which the courts will hear matters relating to or arising out of an arbitration.

Judgments Regulation — arbitration and court judgments

When involved in an arbitration it maybe that there is a previous judgment in relation to the dispute which has been handed down by a court of a Member State. The Court of Appeal has held that such judgments are binding on the arbitral tribunal as to hold otherwise would be contrary to the ECJ decision in the West Tankers case.

Brussels Convention

The Judgments Regulation does not apply to Aruba (an overseas territory of the Netherlands) and French overseas territories. When determining jurisdiction for these territories you would need to apply the provisions of the Brussels Convention (on which the Judgments Regulation was based).

The basic rule is that persons domiciled in a contracting state should be sued in the courts of that state, regardless of nationality.

Lugano Convention

The Judgments Regulation does not apply to Norway, Switzerland and Iceland. When determining jurisdiction you need to consider the Lugano Convention. There are currently two Lugano Conventions, the 1988 Convention (which applies to Switzerland and Iceland) and the 2007 Convention which only applies to Norway.

The basic rule under the conventions is that persons domiciled in a contracting state should be sued in the courts of that state, regardless of nationality.

Civil Jurisdiction and Judgments Regulations 2009

The Civil Jurisdiction and Judgments Regulations 2009 (the Regulations) amends a number of UK statutes including the Civil Jurisdiction and Judgments Act 1982 (Schedule 3C). The amendments reflect the changes required following the Lugano Convention 2007 coming into force in January 2010 (for Norway only). The Lugano Convention 2007 updates the Lugano Convention 1988.

Jurisdiction — Common law

An English court's jurisdiction is founded on service of proceedings. It is therefore important to determine who can be served and whether or not the court's permission is required to serve out of the jurisdiction. The CPR provides the procedure by which a party can seek to dispute the court's jurisdiction under the common law.

Staying and declining proceedings

If proceedings have been commenced in more than one jurisdiction or a party considers that proceedings have been commenced in the wrong jurisdiction then an application can be made to the courts to stay the proceedings or to decline to hear them. The process will depend on whether the proceedings have commenced in a member state or a non EU state.

Jurisdiction agreements

A jurisdiction clause is a way of enabling parties to choose which courts will hear any disputes arising under the contract. An absence of such agreement means that parties will have to determine what rules to apply and then determine which jurisdiction applies under the applicable rules. Requests can be made for non enforcement of an agreed jurisdiction clause.

Different factors will determine the most appropriate jurisdiction to put into a jurisdiction agreement. Disagreements may arise as to the scope or validity of a jurisdiction agreement.

Choice of Court Agreements

The Convention on Choice of Court Agreements (the Convention) was concluded on 30 June 2005 and signed by the European Community on 1 April 2009. It applies in international disputes to all exclusive choice of court agreements for civil or commercial matters which were concluded after the convention came into force in the Member State of the chosen court. It is not yet in force (it will come into force after it has been ratified by two states).

The Convention deals with both jurisdictional issues and the recognition and enforcement of judgments.

Anti-suit injunctions

An anti-suit injunction is an injunction which restrains a party from commencing or continuing proceedings before a foreign court. The ability to obtain such an injunction will depend on different issues such as whether they are to support court proceedings or arbitration and whether they are being sought against a party from an EU Member States or outside the EU.