LLM

Assessment Cover Sheet

Student ID Number: G20837163 Module Tutor: Ajit Joyekurrun

Module Title: International Commercial Programme Title: LLM in Financial and

Litigation Commercial Law

Module Code: LA4929 Year of Study: Level 1

Original Submission Date: 14 January 2020

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 Assignment Question:

Undertake a critical assessment and comparison

between the rules relating to jurisdiction in
international business under European law and
those under the English common law.
 Introduction

Judicial Jurisdiction is the authority of a court to give a legally binding decision on a legal issue. 1

In international business, the jurisdiction rules applicable to litigations between Member States

of the EU are governed by community law and the applicable legislation is the Regulations 2. In

any other instances, national jurisdiction laws are applicable and in the case where litigation is

brought to a court of England, English common law3.4

This assignment will be threefold. Section I focuses on the critical assessment of the rules

relating to jurisdiction as enshrined in the Regulations. Section II constitutes a critical assessment

of rules relating to jurisdiction of English courts, including the forum non conveniens doctrine5

and anti-suit injunctions6 as they mitigate the excessive nature of the rule the English jurisdiction

rule7.

1
Trevor C. Hartley, International Commercial Litigation. Text, Cases and Materials on Private International Law
(Cambridge University Press 2009) p.11
2
Regulation of the European Parliament and of the Council on Jurisdiction and the Enforcement of Judgments in
Civil and Commercial Matters [2012](EU) No 1215/
3
Jurisdiction rules are derived from judicial precedents instead of legislations.
4
Article 4 of Brussels I Regulations.
5
It allows a court which has jurisdiction over a litigation to dismiss it to the profit of a court in another jurisdiction
because it would be more convenient to the parties and justice would be better served.
6
It is a court order that prevents the defendant from initiating or maintaining a proceeding in another foreign
court.
7
The general rule is that jurisdiction belongs to English Courts, when the claim form is served on the defendant
while he is in England even if he is there only on a temporary basis, vide Colt Industries v. Sarlie (1966) 1 WLR 440
(CA) and Maharanee of Baroda v. Wildenstein (1972) 2 QB 283 (CA).
Moreover, in light of the upcoming event of Brexit 8, it is very possible that the rules governing

jurisdiction in international business will be changed depending whether there will be a soft 9,

medium10 or hard11Brexit. Therefore, section III is consecrated to this issue.

Section I - Critical assessment of the rules relating to jurisdiction under EU

law

The rules for jurisdiction under EU law are enshrined in the Brussels I Regulations

(Regulations). The regulations are applicable only to States which are signatory to the

Regulations and the Lugano States.12 Despite that the objective of the regulations is mainly to

provide protection to defendants from excessive jurisdiction of courts, such protection is not

given to defendants from third-country states.13This means that these defendants may be subject

to national jurisdiction rules, whether these rules are fair or not. For instance, one of the most

exorbitant national jurisdiction rules is Article 14 of the French Civil Code. According to this

article, a French citizen may bring a litigation in France, even if such claim has no connection

whatsoever with France.14

Scope of the Regulations

8
Brexit is the departure of the UK from the European Union.
9
A soft Brexit entails that the UK will sustain close relationships with the UK.
10
A medium Brexit means that the UK will maintain relationships with the EU as a third-country.
11
A hard Brexit means a Brexit with no deal.
12
The lugano Convention was signed between by Member States of the EU and certain other States which were
members of the European Free Trade Agreement to extend jurisdiction rules in the Brussels I Regulations to the
latter.
13
Trevor C. Hartley, International Commercial Litigation. Text, Cases and Materials on Private International Law
(Cambridge University Press 2009), p.22
14
Ibid, p.23
The scope of the Regulations is dictated by its Article 1. The regulations are applicable only to

civil and commercial disputes but however apply to all courts or tribunal. However despite being

commercial and civil in nature, certain disputes 15 are exempted from applicable of the

Regulations.

Several rulings have been made as to the correct interpretation of this Article. A leading case is

European Community LTU v. Eurocontol.16 The Court held that it had jurisdiction under the

Regulations as even though Eurocontrol was partly a public corporation, the transaction in

dispute was of commercial nature. It is concluded that a dispute does not stop to be civil or

commercial just because one party is a public body.17

However, the ruling was different in European Community Netherlands v. Rüffer.18In this case,

the Court held that since Netherlands was a public authority on the basis on powers conferred by

its national laws, the claim was public in nature and was therefore outside the scope of the

Regulations19.

15
Disputes relating to legal status of parties or their rights of property in a matrimonial relationship, a will or
succession; disputes relating to bankruptcy, winding up of companies or any analogous matter; disputes relating to
social security; arbitration; revenue; customs; administrative matters and acts or omissions of the State are
exempted from application of the Regulations.
16
European Community LTU v. Eurocontrol, Court of Justice of the European Communities Case 29/76, [1976] ECR
1541
17
Eurocontrol was an air traffic controlling body, being seated in Brussels and it sued European Community LTU
(German company) for charges payable for the use of its services. LTU contested the jurisdiction under the
Brussels I Regulations on the ground that the dispute was not commercial in nature as Eurocontrol was partly a
Public Body.
18
European Community Netherlands v. Rüffer, Court of Justice of the European Communities Case 814/79, [1980]
ECR 3807
19
Rüffer’s ship sank in an area which was under the joint ownership of Germany and Netherlands. As the State of
Netherlands was given the responsibility to river-police the area, it disposed the wrecked ship and was therefore
claiming the cost of the operation from Rüffer.
General rule for jurisdiction

The general rule for jurisdiction in matters of international commercial disputes is dependent on

the domicile of the defendant. The rules are enshrined Article 4 of the Regulations. Accordingly,

persons domiciled in Member States of the EU, independent of their nationality, are sued in the

courts of such states and are subject to the rules of jurisdiction of that state.

Domicile of natural persons

The rules to determine domicile of a person is found in Article 62 of the Regulations, which is

divided into 2 limbs. First, to determine whether a natural person is domiciled in the Member

State of the seized court, the domestic law of the State is applicable. Second, if such court rules

that the person is not domiciled in another state, the domestic law of that State is applicable.

Domicile of corporations

To determine the domicile of a corporation, Article 63 of the Regulations is applicable.

Accordingly, the domicile is either the place of the corporation has its statutory seat, central

administration or principle place of business.

According to Article 7 (5) of the Regulations, the defendant may be sued for a dispute

concerning its ‘branch, agency or other establishment’ in the jurisdiction where the latter is
situated. This article applies only in lawsuits brought against the parent company. 20 In De Bloos

v. Bouyer21, it was held that the branch must be controlled by the parent company and must act as

an extension of the latter. In Somafer v. Saar-Ferngas22, it was held that the branch must have a

management and the material equipment to deal with customers in place of the parent company.

In doing so, the customers do not have to deal with the parent company.

Jurisdiction irrespective of domicile

There are situations in which the Regulations apply independent of determination of domicile.

These include cases of where there is exclusive jurisdiction of a State (e.g. in cases of propriety

of land rights), a choice-of-court agreement or where a court in another EU or Lugano Member

State has been seized prior to the litigation.23

Jurisdiction in cases of contractual claims

According to Article 7(1) of the Regulations, the court which has jurisdiction to deal with a

contractual claim is the court of the ‘place of ‘performance of the obligation’. In Car Trim v Key

Safety Systems24, it was ruled that the “characteristics obligation” 25 of the contract determines

whether the latter is a contract for sale of goods or for provision of services. 26For a contract of
20
Trevor C. Hartley, International Commercial Litigation. Text, Cases and Materials on Private International Law
(Cambridge University Press 2009), p.57
21
De Bloos v. Bouyer, Case 14/76, [1976] ECR 1497
22
Somafer v. Saar-Ferngas, Case 33/78, [1978] ECR 2183
23
Trevor C. Hartley, International Commercial Litigation. Text, Cases and Materials on Private International Law
(Cambridge University Press 2009), p.29
24
Car Trim GmbH v Key Safety Systems Srl (C-381/08) EU:C:2010:90; [2010] 2 All E.R. (Comm) 770; [2010] 2 WLUK
736 (ECJ (4th Chamber));
25
However, such term was not defined.
26
Car Trim was a German company and it airbags to Keysafety Systems, an Italian company, to be used by them to
manufacture airbags systems in cars. Car Trim sued Keysafety Systems for wrongful termination of contract.
sale of goods, the place of obligation is the place of delivery and for a contract of provision of

services; it is the place of performance.27

There are several case laws which have over the years interpreted Article 7(1). The case of

Handte v. TMCS28 established that Article 7(1) does not apply to a litigation brought against a

manufacturer by a sub-buyer.29 In Color Drack v. LEXX International 30, it was ruled that where

there are several places of delivery in one particular Member State, the court of the principle

place of delivery has jurisdiction, as determined based on economic criteria 31. In the absence of

such place of delivery, the claimant has the choice of jurisdiction in the court of any place of

delivery.32

The ruling in Color Drack had a lot of critics. It may encourage forum shopping and there is no

indication as to the relevant rule in the case where delivery takes place either in more than one

Member States or partly in one Member State and partly in another 33.This ruling was applied to

27
Trevor C. Hartley, International Commercial Litigation. Text, Cases and Materials on Private International Law
(Cambridge University Press 2009), p.48
28
European Community, Handte v. TMCS, Court of Justice of the European Communities Case C-26/91, [1992] ECR
I-3967
29
Handte Germany was a German firm which manufactured and sold items to Handte France, registered in France.
The latter sold the same items to a French sub-purchaser, TMCS. TMCS found the goods to be defective and
instituted litigations directly against Handte Germany. It was found that there was no contractual obligation
between them.
30
European Community Color Drack v. LEXX International, Court of Justice of the European Communities Case C-
386/05, [2007] ECR I-3699
31
However, the term ‘economic criteria’ was not determined.
32
Color Drack was a registered firm in Austria and LEXX International was registered in Germany. Color Drack
ordered sunglasses from LEXX International to be delivered to its customers in several parts of Austria. The case
consisted of an appeal to the Supreme Court of Austria which was referred to the European Court.
33
Trevor C. Hartley, International Commercial Litigation. Text, Cases and Materials on Private International Law
(Cambridge University Press 2009), p.52
the case of Rehder v Air Baltic Corp 34, despite the first one being a contract for sales of goods

and the second one being a contract for provision of services. 35 The same principles seem to be

applied uniformly across all cases despite their factual diversity and to both indents of Article

7(1)(b) and this seems to be in conflict with the aims 36 of the Regulations. The application of the

Article has therefore shown to be inconsistent and challenging and will continue to provide

unpredictability for future litigants.37

Jurisdiction in tort claims

Whenever a claim is not established as a contractual claim, Article 7 (2) of the Regulations is

applicable. The Article establishes that in cases of tort, delict or quasi-delict, jurisdiction belongs

to courts where ‘the harmful event occurred or may occur.’

In Bier v. Mines de Potasse d’Alsace38, the court ruled that proceedings may be initiated either in

the court where the damage happened or the place where the event which gave rise to the

34
Rehder v Air Baltic Corp (C-204/08) [2009] E.C.R. I-6073; [2010] Bus. L.R. 549.
35
Mr. Rehder resided in Germany and booked a flight from Germany to Lithuania using a Latvian airline, Air Baltic
Corp. The flight was cancelled and Mr. Rehder brought proceedings in Germany to claim compensation.
36
Brussels I Regulations aim at creating consistent, clear, predictable and universal rules to determine jurisdiction
on contractual claims.
37
Patricia Shine, ‘The problem of place of performance in contract under the Brussels I Regulation: can one size fit
all?’ (2011) International Company and Commercial Law
Review<https://uk.westlaw.com/Document/I451BBFC0040C11E098019101AA1A87BD/View/FullText.html>
accessed 01 December 2019, p.7
38
European Community Bier v. Mines de Potasse d’Alsace, Court of Justice of the European Communities Case
21/76, [1976] ECR 1735
damage occurred.3940 However, in Dumez v. Hessische Landesbank41, the court held that such

ruling applied only to direct harm which resulted from a wrongful act.42

The ruling in Bier was applied in all tort claims despite being different in nature, substance and

context. For instance, despite the case of Bier consisted of a claim resulting from loss

consequential to damage to property, the ruling was applied in claims resulting from economic

loss in Kolassa v Barclays Bank Plc.43 Despite the case consisted a complex claim for pure

economic loss44, the court held that the claimant was allowed to sue in his domicile, simply

because it was the place where the damage was caused.45

Such approach is in conflict with the aims of the legislation. 46 One way to reconcile Article 7(2)

and the aims of the legislation, the European judiciary should categorize tort claims or be guided

by special laws which are applicable to the particularity of the claim in question.47

39
A French mining company had discarded waste into the Rhine river in France and the damage was caused
downstream in Netherlands by a Dutch nurseryman. The latter had to have recourse to a process to purify the
water from the river in order to water his flowerbed. Proceedings were brought by the Dutch nurseryman against
the French mining company in Netherlands in order to recover the costs.
40
This is because both may constitute a connecting factor with the jurisdiction.
41
Dumez v. Hessische Landesbank Case C-220/88, [1990] ECR I-49 (European Court)
42
Hessische Landesbank, a German Bank had caused a German subsidiary of a French firm to become bankrupt.
The French firm was harmed, despite being in France, as its shares in its subsidiary company were reduced. The
proceedings were initiated in France. It was ruled that the French courts had no jurisdiction under Article 7(2) as
the harm suffered by Dumez was indirect. The direct harm was suffered only by the German subsidiary.
43
Kolassa v Barclays Bank Plc (C-375/13) EU:C:2015:37; [2016] 1 All E.R. (Comm) 733; [2015] 1 WLUK 615 (ECJ (4th
Chamber))
44
It is very difficult to identify the nature and location of the damage and to separate issues of damage and loss in
a case of economic loss.
45
Mr. Kolassa resided in Vienna and requested its bank in Austria to place an order with a German Bank, being the
parent company of the Austrian Bank, with a bank in England to issue him bearer bonds. The Austrian Bank held
the shares in which Mr. Kolassa had an interest. The value of the bonds was linked to an investment portfolio
which was conferred by the English Bank to a third party and because of a fraud in the portfolio, Mr. Kolassa loss
the entirety of the money he had invested. He initiated proceedings against the English Bank in torts in his
domicile. The court held that the damage was caused in the place where the bank account of Mr. Kolassa was
found, which is the place where the damage occurred and therefore, Mr. Kolassa was allowed to sue the English
Bank in his own domicile.
46
The aims include certainty, predictability and factors connecting a dispute and a court.
47
Patricia Shine, ‘The pursuit of certainty and predictability on the jurisdiction issue in tortious commercial claims
across Europe’ (2017) International Company and Commercial Law
Review<https://uk.westlaw.com/Document/I0DE9C060914611E6B2A3841E0ECE9092/View/FullText.html>
accessed 1 December 2019, p.10
Exclusive jurisdiction

Under Article 24 of the Regulations is, exclusive jurisdiction cover only the following issues:

rights relating to immovable property; incorporation and other issues relating to company law;

legality of public registers; registration or validity of intellectual property rights and enforcement

of judgments.

Tactical litigation

Tactical litigation poses a serious challenge in the regime under the Regulations as the doctrine

of lis pendens48 is allowed under the Regulations.49 Accordingly, lis pendens has been misused

by parties to litigation to avoid application of choice-of-court and contractual responsibilities.

The CJEU has even been shown to reject application of other doctrines and thus favoring tactical

litigation.50 In Owusu v Jackson51, application of forum non conveniens was not granted and in

Turner v Gravit52,anti-suit injunctions.

48
The doctrine allows parties to bring cases to the EU judiciary and be allowed to proceed only because they were
first to bring the lawsuit.
49
Dr Chrispas Nyombi, Moses Oruaze Dickson, ‘Tactical litigation in the post-recast Brussels Regulation era’ (2017)
European Competition Law Review,
<https://uk.westlaw.com/Document/I19274E908F0E11E787EBABB957E987BA/View/FullText.html> accessed 1
December 2019, p.1
50
Ibid, p.12
51
Owusu v Jackson (C-281/02) EU:C:2005:120; [2005] Q.B. 801
52
Turner v Grovit (C-159/02) EU:C:2004:228; [2005] 1 A.C. 101
 Section II - Critical assessment of rules relating to jurisdiction of English

courts

Actions in personam

Traditional English rules apply to defendants who are domiciled in countries other than States

signatory to the Regulations and the Lugano Convention and against whom a lawsuit has been

brought in an English court.53 The rule is that an English court has jurisdiction whenever a claim

form is served on a defendant in England.54 In Colt Industries Inc. v. Sarlie,55 the court held that

since the defendant came to England for his personal reasons and was not tricked by the

claimant, English court has jurisdiction despite the latter’s stay was temporary5657..The excessive

nature of the traditional rule on international jurisdiction is mitigated by the doctrine of forum

non conveniensand anti-suit injunctions.

Forum non conveniens

The doctrine of forum non conveniens allows a court which has jurisdiction over a litigation to

dismiss it to the profit of a court in another jurisdiction because it would be more convenient to

the parties and justice would be better served. In Spiliada Maritime Corp v Cansulex Ltd 58, the

court held that the test for forum non conveniens is divided into two limbs. In the first limb, the
53
Trevor C. Hartley, International Commercial Litigation. Text, Cases and Materials on Private International Law
(Cambridge University Press 2009), p.77
54
Ibid, p.78
55
England Colt Industries Inc. v. Sarlie High Court (Queen’s Bench Division) [1966] 1 WLR 440
56
The defendant, who was not domiciled in England was served a claim form during his temporary stay at a Hotel in
England for reasons unconnected with the case.
57
This is in line with the principle of establishing a link between the defendant and the jurisdiction of the court.
58
The claimant is a Liberian company and owned a ship and the defendant is a Canadian company. There was
shipment of sulphur from British Columbia to India using the ship of the claimant and which was managed partly in
India and partly in England. The carriage contract had a clause of English choice-of-law. Spiliada’s case was that the
sulphur was wet and corroded its ship because of the fault of Cansulex.
defendant has the onus to prove to the court that a foreign jurisdiction is more strongly connected

with the claim than England. In the second limb, the claimant has to prove that justice will not be

obtained in the foreign jurisdiction.

This rule is seemed to be unpredictable and leads to “wasteful litigation and judicial

chauvinism”59. This is because in the past, similar cases did not lead to the same outcome 60.

Wasteful litigation is attributed to the fact that the court can take any factor into consideration

and therefore much evidence is required.61 Judicial Chauvinism is attributed to the discretion of

English Courts to decide on foreign court’s quality of justice. Moreover, several case laws 62 also

showed that the application of the second limb did not afford fair trial to the claimants. The

situation can be remedied 63

by limiting the courts’ powers and making the spiliada test

compatible with article 6(1)64 of the ECHR65.

Anti-suit injunctions
59
Ardavan Arzandeh, ‘Should the Spiliada test be revised’ [2014] Journal of Private International Law, p.90
60
For instance, Pacific International Sports Clubs Ltd v Soccer Marketing International Ltd [2009] EWHC 1839 (ch)
and AK Investment CJSC v Kyrgyz Mobil Tel Ltd [2011] UKPC 7; [2012]1 WLR 1804
61
For instance, OJSC Oil Company Yugraneft (in liquidation) v Abramovich [2008] EWHC 1839 (ch) involved half of
eight days trial to determine jurisdiction.
62
These include Cherney v Deripaska [2008] EWHC 1530 (Comm) [2009] 1 All ER 9Comm) 333 and AK Investment
CJSC v Kyrgyz Mobil Tel Ltd [2011] UKPC 7; [2012]1 WLR 1804
63
Ardavan Arzandeh, ‘Should the Spiliada test be revised’ [2014] Journal of Private International Law, p.93
64
Article 6(1) of the ECHR states that: “In the determination of his civil rights and obligations or of any criminal
charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent
and impartial tribunal established by law……”
65
European Convention for the Protection of Human Rights and Fundamental Freedoms [1950] 213 UNTS 221
An anti-suit injunction is a court order that prevents the defendant from initiating or maintaining

a proceeding in another foreign court.66 In Société Nationale Industrielle Aérospatiale v. Lee Kui

Jak,67it was ruled that the general principle is that the court should interfere to grant an anti-suit

injunction when there is ‘vexation and oppression’ which prevents administration of justice.68

One main critic of such relief, especially in non-contractual claims, is that the notion of comity 69

is merely taken in to account and this is reflected in the absence of choice of law rules. 70 Courts

have been applying lex fori71 and the principle of comity was considered only in the ultimate

decision to grant the relief or not. A better approach would be that application of lex fori be

limited to cases which only concern safeguarding judicial processes as the notion of comity

becomes irrelevant72. However, in cases which concern delivering justice between parties from

different states, choice of law rules should be made applicable.73

Action in rem
66
Trevor C. Hartley, International Commercial Litigation. Text, Cases and Materials on Private International Law
(Cambridge University Press 2009), p.222
67
Société Nationale Industrielle Aérospatiale v. Lee KuiJak Privy Council [1987] AC 871; [1987] 3 WLR 59; [1987] 3 All
ER 510
68
In this case, a Brunei Businessman was killed in an air-crash. The widow of the Businessman sued the French
claimant, Aerospatiale, which has manufactured the aircraft. The aircraft was owned by an English firm and was
operated by a Malaysian firm. It was held that given that the crash may have resulted from the fault of the
operator and if the Aerospatiale was found liable, it would be able to sue the operators under Texas jurisdiction
and rely on a Texas judgment. Therefore, Aerospatiale could be found to pay the widow without the opportunity
to recover its loss from the faulty operator. This is the proceedings in Texas unjust and the appeal was granted.
69
The principle of comity is defined in Hilton v Guyot [1895]159 US 113 as the acknowledgement which one state
grants to another state’s acts, being legislative, executive or judicial, within its own territory and in consideration
of the rights of its citizens as well as other persons protected by its own laws.
70
Cameron Sim, “Choice of law and anti-suit injunctions relocating comity” (2013) International& Comparative Law
Quarterly<https://uk.westlaw.com/Document/I25FD9FF0FBE411E29CE3C913287F8447/View/FullText.html>
accessed 1 December 2019, p.1
71
Lex fori refers to the laws of the country where the lawsuit has been brought.
72
In those cases, anti-suit injunctions are granted only as ancillary reliefs.
73
In those cases, the process in Rome II Regulations should be followed.
Traditional English rules apply to companies not domiciled in any State signatory to the

Regulations and the Lugano Convention. This rule applies only in cases where the place of

business is fixed.74To identify the place of business, we must distinguish between the case where

a company has its own office and staff and the case where the company carries its business

through a representative or an agent.

Company with its own office and staff

In Dunlop Pneumatic Tyre Co. Ltd v. A. G. Cudell & Co.75, it was ruled that the test in such a

case is to determine whether the foreign firm is conducting its businesses in a fixed location

within the jurisdiction. The fact that the business was only conducted within nine days and only

part of the business was conducted in the jurisdiction did not prevented the company from being

considered as residing in the jurisdiction.76In South India Shipping v. Bank of Korea77, the court

ruled that even though a foreign company does not conclude any contract, it can still be

considered as doing business78.

Company carrying business through a representative or an agent

74
Trevor C. Hartley, International Commercial Litigation. Text, Cases and Materials on Private International Law
(Cambridge University Press 2009), p.84
75
England Dunlop Pneumatic Tyre Co. Ltd v. A. G. Cudell& Co. Court of Appeal [1902] 1 KB 342
76
The defendants, being a German company exhibited and took orders at a stand at a cycle show in England. Claim
form was served on the staffs at the stand. The stand was operated by the staffs of the company and was
considered as the place of business by the court of first instance. The defendants appealed to the case.
77
England South India Shipping v. Bank of Korea Court of Appeal [1985] 1 WLR 585; [1985] 2 All ER 219; [1985] 1
Lloyd’s Rep 413
78
The defendant is a Korean bank. It opened an office in England in its own name and staffed with its own
employees, which had administrative functions but did not conclude any financial transactions. The claimant, being
an Indian shipping firm had made letters of guarantee in connection to a contract, which had no connection with
the office in England and which was served on the latter. The court of first instance ruled that the claim form was
not properly served and subsequent appeal was allowed.
It must be proved that the agent is conducting the company’s business rather than its own. 79In

Saccharin Corporation v. Chemische Fabrik von Heyden80, the court held that the office

consisted the place of business of the company and the latter could be served a claim form in

such office because the representative could accept orders for the company without having to

refer back to it.81 However, in Okura v. Forsbacka Jernverks82, it was held that the representative

was not acting as an agent for a company as it was not authorized to accept orders in the name of

the company without obtaining its orders first.

English rules over a foreign company are similar to Article 7(5) of the Regulations and therefore,

decisions for ‘branch, agency and other establishment’ can be applied under English law as well.

However, under the community law, the place of business gives jurisdiction only to claims

arising from the business itself, whereas under English law, jurisdiction is in general.

Service outside jurisdiction

Under English law83, it is authorized to serve claim forms outside England to obtain jurisdiction

over foreign persons. The claimant should accordingly seek permission of court before serving

the claim form.84He should show that the case comes within the Civil Procedure Rules and that it

should be heard in England according to the forum non conveniens doctrine.The circumstances in

79
Trevor C. Hartley, International Commercial Litigation. Text, Cases and Materials on Private International Law
(Cambridge University Press 2009), p.87
80
Saccharin Corporation v. Chemische Fabrik von Heyden [1911] 2 KB 516 (CA).
81
The defendant was a German company and appointed a representative in England. The representative of the
company was remunerated only by commission, rented an office in his own name and could represent other firms.
82
Okura v. Forsbacka Jernverks [1914] 1 KB 715 (CA).
83
Rule 6.36 and Practice Direction 6 B, paragraph 3.1 of the Civil Procedure Rules
84
Trevor C. Hartley, International Commercial Litigation. Text, Cases and Materials on Private International Law
(Cambridge University Press 2009), p.96
which service of service of claim forms outside jurisdiction is permissible is in matters of

contracts85 and torts.

Jurisdiction not based on service of claim form

In addition to service of claim form, jurisdiction may also be obtained with the consent the

defendant either through a choice-of-court agreement, by pleading to the merits without having

regards to jurisdiction or by summoning jurisdiction by himself. There is a similar

provision86under the Regulations but contrary to the regulations, English rules allow

counterclaims. Moreover, similarly to community law, English law recognizes exclusive

jurisdiction of foreign courts over certain matters, especially on claims concerning land disputes.

85
Contractual claims include contracts made through or by an agent who resides within the jurisdiction; contracts
having a choice-of law or choice-of-court clause giving jurisdiction to English courts; and breach of contracts
committed in jurisdiction.
86
Article 26 of Brussels I Regulations
 Section III - Jurisdiction post Brexit

In the upcoming event of Brexit87, the rules governing jurisdiction in international business may

be changed depending on whether there will be a soft88, medium89 or hard90 Brexit.

In such case, a soft or medium Brexit will be least disruptive to England. 91 The possible options

available to England are to sign an agreement with the EU to continue to apply the Regulations;

to conclude a new international treaty on jurisdiction with the EU; to apply the rules of the

Regulations unilaterally; or to conclude new international treaties for judicial cooperation. A

hard Brexit will mean that the Regulations and other international conventions such as the

Lugano Convention92 and the Hague Choice of Court Convention 93 will no longer apply to

England and therefore the UK would need to make special arrangements to replace those

provisions. Any absence of such provisions would make determination of jurisdiction difficult as

different rules will apply in different states.

The best approach seems to be concluding a new convention on judicial co-operation between

the EU and UK, reflecting “a deep and special partnership” between them. 94 The convention

87
Brexit is the departure of the UK from the European Union.
88
A soft Brexit entails that the UK will sustain close relationships with the UK.
89
A medium Brexit means that the UK will maintain relationships with the EU as a third-country.
90
A hard Brexit means a Brexit with no deal.
91
GieselaRuhl, ‘Judicial cooperation in civil and commercial matters after Brexit: which way forward?’ (2018)
International & Comparative Law
Quarterly<https://uk.westlaw.com/Document/I20B00CF0F7FB11E7908EC73FA3BD350D/View/FullText.html>
accessed 1 December 2019, p.13
92
Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
2007
93
Hague Convention on Choice of Court Agreements [2005]
94
GieselaRuhl, ‘Judicial cooperation in civil and commercial matters after Brexit: which way forward?’ (2018)
International & Comparative Law
should maintain the existing legal framework and relationships between EU and the UK and thus

provides certainty to stakeholders. As regards to possible disagreement by the CJEU,95 an

intermediate approach is suggested whereby the UK would allow deviation only in special

circumstances with reasonable justifications.96

Quarterly<https://uk.westlaw.com/Document/I20B00CF0F7FB11E7908EC73FA3BD350D/View/FullText.html>
accessed 1 December 2019, p.8
95
Court of Justice of European Union
96
GieselaRuhl, ‘Judicial cooperation in civil and commercial matters after Brexit: which way forward?’ (2018)
International & Comparative Law
Quarterly<https://uk.westlaw.com/Document/I20B00CF0F7FB11E7908EC73FA3BD350D/View/FullText.html>
accessed 1 December 2019, p.12
Conclusion

In matters of international jurisdiction, the Regulations are applicable to States which are

signatory to the latter and to the Lugano Convention. For defendants domiciled in any other State

and against whom litigation has been brought in an English court, traditional English laws are

applicable. As opposed to EU law, English rules on jurisdiction are based exclusively on

common law. The general rule for jurisdiction under EU law is dictated by the domicile of the

defendant, whereas in English law, the general rule is that whenever a claim form is served on a

defendant during his stay in England, even though the stay is temporary, the latter has

jurisdiction.

Both under EU law and traditional English laws, there are exceptions to the general rule. In both

cases there is exclusive jurisdiction of a State in certain situations 97. In EU law, there are special

jurisdiction rules in contractual and tort claims. Similarly, there are special rules pertaining to

these claims under English laws, but pertaining to different reasons. In English laws such

exceptions also include service of claim forms outside jurisdiction.

As opposed to the Regulations, the traditional English laws allow discretion by the judiciary and

this reflects in practical needs and concerns. We have seen that the strict application of the

Regulations may lead to conflicts between the certain regulations 98 and its aims. To avoid this,

the same rule should not be made to apply to different facts. Traditional English rules have also

97
These include land disputes; whenever there is a choice-of-court agreement or whenever the defendant pleads
to merits of the case without any regards for jurisdiction. However, in land disputes under English laws,
counterclaims are allowed.
98
For instance, Article 7(1) and 7(2)
been criticized as well. For instance, forum non conveniens may lead to wasteful litigation and

judicial chauvinism and anti-suit injunctions do not always take judicial committee into account.
Bibliography

EU Legislations

Regulation of the European Parliament and of the Council on Jurisdiction and the Enforcement
of Judgments in Civil and Commercial Matters [2012] (EU) No 1215/

Convention on jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters 2007

Hague Convention on Choice of Court Agreements [2005]

Books

Trevor C. Hartley, International Commercial Litigation. Text, Cases and Materials on Private
International Law (Cambridge University Press 2009)

Journal Articles

Ardavan Arzandeh, ‘Should the Spiliada test be revised’ [2014] Journal of Private International
Law

Online Journals

Patricia Shine, ‘The pursuit of certainty and predictability on the jurisdiction issue in tortious
commercial claims across Europe’ (2017) International Company and Commercial Law Review
<https://uk.westlaw.com/Document/I0DE9C060914611E6B2A3841E0ECE9092/View/
FullText.html> accessed 1 December 2019

Patricia Shine, ‘The problem of place of performance in contract under the Brussels I
Regulation: can one size fit all?’ (2011) International Company and Commercial Law Review
<https://uk.westlaw.com/Document/I451BBFC0040C11E098019101AA1A87BD/View/
FullText.html> accessed 01 December 2019

Cameron Sim, “Choice of law and anti-suit injunctions relocating comity” (2013) International
& Comparative Law Quarterly
<https://uk.westlaw.com/Document/I25FD9FF0FBE411E29CE3C913287F8447/View/
FullText.html> accessed 1 December 2019

Masood Ahmed, ‘Anti-suit injunctions: the principle of comity and the concepts of vexatious and
oppressive proceedings’ (2012) Civil Justice Quarterly
<https://uk.westlaw.com/Document/I51159800B9BE11E1AAED857176AF78A8/View/
FullText.html> accessed 1 December 2019

Giesela Ruhl, ‘Judicial cooperation in civil and commercial matters after Brexit: which way
forward?’ (2018) International & Comparative Law Quarterly
<https://uk.westlaw.com/Document/I20B00CF0F7FB11E7908EC73FA3BD350D/View/
FullText.html> accessed 1 December 2019

Zheng Sophia Tang, ‘UK-EU civil judicial cooperation after Brexit: five models’ (2018)
European Law Review
<https://uk.westlaw.com/Document/I7C5A4BD0D3F911E899EEF1503A06597C/View/
FullText.html> accessed 1 December 2019

Dr Chrispas Nyombi, Moses Oruaze Dickson, ‘Tactical litigation in the post-recast Brussels
Regulation era’ (2017) European Competition Law Review
<https://uk.westlaw.com/Document/I19274E908F0E11E787EBABB957E987BA/View/
FullText.html> accessed 1 December 2019