Topic 2: Jurisdiction: Special Rules, Exclusive Jurisdiction, Prorogation and Forum Non Conveniens
Lecture 2 of 2
Recommended Reading
▪ Crawford Carruthers paras 7-39- 7-50; 7.80-7.82
▪ Anton 3rd edition 8.28-8.47 in particular
EXCLUSIVE JURISDICTION
▪ Claims with such a close connection they can only be raised in that forum
▪ Exclusive Jurisdiction- regardless of defender’s domicile, Rule 5 Sch 8 (para 11 Sch 4)
▪ Various rules (e.g., validity of IP rights, disputes re constitution of a company, all primarily re
Registers…)
▪ Most important and litigated, re property disputes
▪ Recast Art 27 (ex Art 25) - declare of its own motion where another court has jurisdiction - see
also rule 5(2) a Scottish court must decline jurisdiction if any court furth of the Scottish
jurisdiction would have exclusive jurisdiction under the application of the provisions in rule
5(1)
▪ Rule 5(a) (Brussels 1a Article 24(1)(a))
▪ Scope applies to: proceedings which have as their object, rights in rem in, or tenancies of,
immoveable property
▪ Rights in Rem? Webb v Webb - Right in Rem v a personal claim
One party (a dad) had used money to buy a property in France and conveyed it to the son and
the father then after wanted the ownership of the property to be held in trust to the son. So,
there was a question of who owned the property?
The son argued that the French courts should have jurisdiction because the matter was a right
in rem. The dad had brought proceedings to the English court to declare that the property was
in trust, but the son said that it was a right in rem so should be brought in the French court as
it is where the property is situated. The court in England did not agree with the son, the court
said that the dispute was a right in persona, not a right in rem, so it was valid for the English
courts to deal with the matter, so the application for right in rem was not established.
Short-term leases (ie leases for no more than 6 months) - Rosler v Rottwinkel [1986] QB 33,
[1985] ECR 99
This was a dispute about the lease of a flat in Italy. There were two German parties to the
lease, and there was a dispute about the state of the property and the way in which it had
been left in breach of the lease. One party was suing for utility expenses as they had not paid
the bills. The Court of Justice said that exclusive jurisdiction is where the property was
situated. The court said that it was the place in Italy in relation to a right in rem which is the
best place to enforce local property law.
Hacker v Euro-Relais GmbH [1992] ECR I-1111
, The Court of Justice said that a contract for the use of holiday accommodation and travel
arrangements (not only a lease, a tenancy and travel arrangements) was not within the scope
of this rule. They said that the rule did not apply to conflicts commercial contracts.
▪ Land Oberosterreich v CEZ - does not extend to nuisance claims. More likely to be a delict,
you need to sue in the place giving rise to the damage or the place where the harm occurred.
▪ Tenancies of immovable property, sue only where the property is situated
▪ Sanders v Van Der Putte/Rosler v Rottwinkel - all disputes re quality/payment etc
▪ but see limitations in scope, Scottish case of Sauchiehall Street Properties One ltd, v EMI
Group Ltd, 2014 Sheriff Reid
There was a dispute between a landlord and a guarantor of a tenant for unpaid rent arrears
of £500,000 worth. The landlord wanted his money from the guarantor for a tenant. Was
jurisdiction falling within the scope of the contract of guarantee or did it fall within the scope
of exclusive jurisdiction?
The guarantor did not want the Scottish courts to have jurisdiction because the guarantor
wanted it to be subject to the contract of guarantee. The court said that a narrow
interpretation, so he applied exclusive jurisdiction narrowly and uniformly with the European
approach. The parties of the dispute were not landlord and tenant but creditor (landlord) and
debtor (guarantor). The nature of the dispute was an obligation under the guarantee, not
under the tenancy. So, the object of the proceedings was not the right in rem over the
tenancy, it was about the performance of the guarantee.
▪ Immoveable property disputes continued:
▪ Hacker v Euro-Relais- does not extend to package holiday type tenancies
▪ Jarrett v Barclays Bank- CA 1996 - ‘timeshare’ may be covered
▪ Klein v Rhodos Management Ltd- CJEU 2005- club membership which included right to acquire
a timeshare not within scope of exclusive jurisdiction
▪ Also applies to company constitution disputes: Koza Ltd v Akcil [2019] UKSC 40
This case is in relation to a company constitution disputes. Proceedings were raised in England
and went to the Supreme Court. The question was in relation to the governance of a company
and whether it fell under the scope of exclusive jurisdiction. The starting point is that exclusive
jurisdiction can apply to a company constitution. The court said that there had to be high
predictability in applying this rule, a very strict application in the case of questions on company
constitutions. This, the court said, did not concern company constitution, it concerned the
role and notice given to trustees under the Companies Act and the trustee’s authority. So,
looking at the nature of the dispute, it did not concern the constitution of a company under
this exclusive jurisdiction rule. The dispute was about the validity of a notice to a trustee and
the trustees’ authority and that did not fall within the scope of this exclusive jurisdiction rule.
The supreme court said that the nature of the dispute in this case did not fall within Article 24
(Schedule 8, rule 5 now).
