International Private Law - Lecture 2 (Part 1) - Introduction to Jurisdiction in Civil Matters
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International Private Law (LAW10118)
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Edinburgh Napier University (ENU)
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International Private Law
Lecture notes for the International Private Law module linked to E B Crawford and J M Carruthers, International Private Law in Scotland book. Author achieved a first-class grade for the module.
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Topic 2: Introduction to Jurisdiction in Civil Matters
Aims of the Topic
To consider three things:
▪ 1. Understand civil and commercial jurisdiction in Scottish courts,
▪ 2. The rules applicable to cases brought before Scottish courts post Brexit
▪ 3. Special jurisdiction, parallel proceedings, and the effect of jurisdiction agreements
Recommended Reading
▪ Anton Chapter 8 (selected parts), on Westlaw.
Introduction to Civil and Commercial Jurisdiction
▪ What are the rules on jurisdiction?
See e.g., Parkes v Cintec International 2006 – an illustration to see what the courts said about
the importance of jurisdiction.
There was a dispute between parties and Scottish proceedings were raised first for a patent
infringement. In response to that, the defender to the Scottish proceedings raised
proceedings themselves in the English courts. They were being sued in Scotland so in response
they raised threat proceedings in the English court. Could the English court proceedings go
ahead because the Scottish proceedings had got there first? The English court said the
proceedings were not the same, so the Scottish case was for a patent infringement and the
English proceedings were a threat proceedings so they were conceptually different. So, the
English proceedings could go ahead, and the English court was adamant about that. They said
questions of jurisdiction are nearly always important because of this whole issue – if they had
been the same proceedings, then the English court proceedings could not have gone ahead
because you cannot have two courts competing each other on the same issue.
▪ The UK withdrawal from the EU has had an important impact here as a result of which
students/practitioners need to focus on four sets of rules:
▪ Set (1): The Civil Jurisdiction and Judgments Act 1982 Schedule 8 – for all defenders not
domiciled in a different part of the UK;
▪ Set (2): The Civil Jurisdiction and Judgments Act 1982 Schedule 4 – for defenders domiciled in
a different part of the UK; and
▪ Set (3): The Hague Convention on Choice of Court Agreement Convention 2005 – where the
Convention applies between countries that have signed the Convention and the parties have
selected that country as the jurisdiction in their contracts.
▪ Set (4): The operation of the doctrine of forum conveniens. – or ‘appropriate court’. Plea used
to say to the court to stop the proceedings from proceeding further, there is a more
appropriate court that should hear the case.
, ▪ Be aware of EU law developments re civil and commercial jurisdiction through Brussels I
scheme (The Brussels I ‘Recast’ Regulation - No 1215/2012 – applied from 10 January 2015
to 31 January 2020 as CJEU decisions before Exit Day may be taken into account by Scottish
courts!
Historical Background
▪ Pre UK EC Membership:
▪ Article 293(4) Treaty of Rome - required member states to-
▪ “enter into negotiations with each other with a view to..the simplification of formalities
governing the reciprocal recognition and enforcement of judgments of courts or tribunals…”
▪ Jenard Report OJ 1979, C 59/1-70,
▪ Background to original Convention-exorbitant jurisdiction rules in EEC MS, and to facilitate
recognition and enforcement of judgments to facilitate intra EU trade – businesses know
where they can sue and recover their court awards easily!
▪ 1987-1999: Brussels and Lugano Conventions in UK
▪ Modifications to BC- Accession Treaties for New MS-CJJA 1982
▪ Extension of BC- Lugano Convention Parallel Convention>The CJJA 1991
▪ 1999-2020
▪ EU Competence in IPL-Treaty of Amsterdam 1997>Regulation 44/2001
▪ Article 81TFEU, Note- position of Denmark
▪ Agreement Denmark/EC extend scope of BIR
▪ Revised Lugano Convention 2007
▪ Commission Proposal to revise Regulation > Brussels I Recast (10 Jan 2015)
▪ After end of transition period (31/12/20): Brussels I Recast Regulation EU 1215/2012 only
applies if you wanted to raise an action in one of the EU MS Courts (or the Lugano Convention
in an EFTA State court or in an EU MS court against an EFTA domiciled defender).
Role of the CJEU…
▪ Protocol 1971- Arts3(1) and 3(2) of Protocol
▪ CJJA 1982-sections 3(1)-3(2)-3(3)
▪ Cf Brussels I Reg and Brussels I Recast and the CJEU’s role, preliminary rulings under Art 267
▪ References also under the revised LC
, ▪ But after end of transition period (31/12/20) note role of EU law and CJEU re application of
Schedule 8 and Schedule 4 rules, below
After 31/12/20, Civil Jurisdiction Rules
▪ AFTER END OF TRANSITION PERIOD (31/12/20), NO LONGER A PARTY TO THE BRUSSELS (OR
LUGANO) REGIME!! RECIPROCAL ARRANGEMENTS BETWEEN UK and EU ENDED
▪ See in particular The Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations
2019, SI 2019/479 and
▪ STUDENTS SHOULD READ - The Explanatory memorandum, available at
https://www.legislation.gov.uk/uksi/2019/479/memorandum/contents
After 31/12/20, Civil Jurisdiction Rules
▪ So now regardless of where the defender is domiciled, in civil and commercial disputes (except
where other specific provision) - we look to Schedule 8 and Schedule 4 of the CJJA 1982 to
ascertain if the pursuer can establish jurisdiction before the Scottish courts
▪ Schedule 8 all cases except ‘intra-UK’ disputes where the defender domiciled in another part
of the UK from Scotland (England and Wales, or Northern Ireland) – use Schedule 4 instead.
▪ Also, potential residual use of the Hague Convention on Choice of Court Agreements 2005 in
certain commercial disputes.
QUICK SUMMARY SO FAR!
▪ The structure of the remainder of this handout is as follows.
▪ We are going to focus on the key jurisdiction rules in Schedule 8 which mirror those in the
Brussels Regime and with an interpretation provision based on pre-exit day CJEU case law and
Scottish court case-law.
▪ We consider key jurisdiction rules in Schedule 4 at the same time, with Scottish and English
case law on Schedule 4.
▪ We will then look at the Hague Convention 2005 and forum conveniens to finish.
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