QUESTION

 

Critically analyse the evolution of the changes made to Jurisdiction in personam culminating in Regulation 1215/2012 (the Recast Regulation). What difference will Brexit make?

Word Limit: 2000 words excluding footnotes and bibliography. With OSCOLA Referencing.

 

 

ANSWER

 

CRITICALLY ANALYSE THE EVOLUTION OF THE CHANGES MADE TO JURISDICTION IN PERSONEM CULMINATING IN REGULATION 1215/2012 (THE RECAST REGULATION). WHAT DIFFERENCE WILL BREXIT MAKE?

Executive Summary

This report sheds light on the analysis of different changes that have been take place over the years in the field of jurisdiction in personam. Several conventions have been introduced to culminate in personam jurisdiction. In this report the facts of Brussels Convention and the purpose of it have been discussed. Analysis of the evolution of the changes of English jurisdiction has been highlighted here and the various changes of laws and regulation regarding the English jurisdiction and the way they have applied to the community of UK are broadly discussed here. A brief description of facts and application of Regulation 44/2001 and Recast regulation 1215/2012 have been given here. Lastly, a discussion on impact of Brexit over this regulation has been described in this report.

Introduction

Personam Jurisdiction highlights the specific authorities of court in determining personal rights as well as liabilities of an individual. The Court needs to have the personam jurisdiction over any defendant in order to bind the defendant to an obligation. Personam jurisdiction is different from other jurisdictions which are related to subject and matter known as territorial jurisdiction. In this report an analysis will be done on the changes made to the section of personam culmination over the year in Recast Regulation and impact of brexit on these changes. Jurisdiction refers to an official organisation or court that makes judgments and decisions. It generally holds the power of rules, laws and legal decisions. European Union has been an economic and political union of 28 states situated in Europe. In this specific background, Brexit is the possibility of Britain to withdraw from European Union. The uncertainty of Brexit regarding agreement has impacted on the part of judgments, jurisdiction, proper law, insolvency and lawyers.

2- The evolution of changes executed to jurisdiction in personam

English courts tend to have jurisdiction over a dispute when a defendant is domiciled in England. It can exhibit power over a defendant who is domiciled outside of England, but within another state under the membership of European Union. Non European Union defendant can be served by the claim from while he or she has been in England.

Brussels convention refers to a specific convention on the part of enforcement of judgements and civil jurisdiction that has been signed at Brussels in the year of 1968. UK has acceded to the convention in 1978.

The Brussels I regulation has contained a jurisdiction regime. It is a set of rules that the courts of European Union members tends to determine in case of disputes connected with more than one state under European Union.

Recast Brussels regulation tends to regulate the jurisdiction and the enforcement and recognition of judgments between the EU member states. It has a direct impact on the part of UK except Denmark.

A Jurisdiction of English courts

As per English jurisdiction under the Recast Brussels Regulation if a defendant domiciled in England, than the English Court will have a jurisdiction over the defendant and the dispute will not be allowed to argue on any subject related to courts of a different jurisdiction¹. The dispute will not be open to take any decision regarding the determination of the case by any other jurisdiction. English jurisdiction in personam related to two matters of a person if the individual is domiciled in England. Firstly, the individual is reside in jurisdiction and secondly, the nature and circumstances of the residence. In contrast to the above fact the most spent nights in a particular jurisdiction will be counted as the jurisdiction the defendant belongs to². In terms of the then RSC 0.53 rl(l)(a), the business interests is also considered in this case that how many time dispute spent among different jurisdiction. However, the rules are different and have changed over the time in case of the defendant from outside of England (under CPR 6) but within another European Union member state and non-European defendant³.

In the context of English courts, jurisdiction has been a complex idea that particularly indicates the area subjected to the control of court. This can be territorial as English courts do not have power over other countries or can be subject based in terms of a civil court cannot be able to have jurisdiction for dealing with a criminal case.

The regulations on jurisdiction of claim form can be practically complex when the defendant does not belong to English Jurisdiction in order to bring the claim at right place and right court to be properly served.

The case of Four Seasons Holdings Incorporated v Brownlie [2017] UKSC 80 has been a case example of jurisdiction of English court which arose from a car accident of a couple on a sightseeing trip in Egypt where claimant has been injured and her husband has been killed⁴. The claimant has been permitted to be served by English proceedings as they were the citizens of UK.

Maharanee of Baroda v. Wildenstein has been a decision of English court that has been linked with the conflict of laws. In this case, the defendant has been permitted to be served by English proceedings as the conflicts have risen during her brief visit to England⁵.

After 1960, the new judicial architecture has been executed by CFI (the Court of First Instance). Since the year 2009, CFI has been identified as a general court that has jurisdiction in competition cases regarding intellectual property.

B Brussels convention

Brussels regime had come in focus when the relative simplicity of the English rules was stripped away by the coming into force of the Civil Jurisdiction and Judgments Act 1982. The convention on enforcements of judgments had been signed at Brussels in 1968 and this convention is signed by the members of the European Economic Community⁶. This became a part of UK law, as a result of section 2 (I), under the Civil Jurisdiction and Judgments Act 1982. The Brussels I regulation is the replacement of the Accession Convention of 1978. This act came into force on 1st March, 2002. The Brussels convention 1968 has come into force by 1st February, 1973 among six founding states under European Economic community that are France, Germany, Italy, Luxembourg, Netherlands and Belgium. It has provided the specific criteria to determine the competent judge among the member states.

As per Brussels convention, any state which subsequently joined the community such as UK was to be bound by its terms⁷. However, when UK joined, an accession convention negotiated which made a number of changes to Brussels convention. A further international document that should be mentioned here is the protocol on Interpretation of 1971⁸. There are two subsequent facts of development that affecting the legislative background of Brussels Convention. Firstly, the enactment of the Civil Jurisdiction and Judgments Act (CJJA) 1991. Section 1 (1) of this act gives power of law to the Lugano Convention of 1988⁹. The purpose of Lugano Convention, which can be found in schedule 3C of the civil jurisdiction and judgment act 1982, is to extend the fundamentals of Brussels convention to the European free trade association (EFTA)¹⁰. However, in protocol 2 of the Lugano Convention the parties are responsible for pay under the order of other contracting states. Some changes have been made in Brussels Convention, which are comes in action after the application of San Sebastian Convention, in order to avoid the unnecessary divergence between Lugano and Brussels Convention¹¹. Aside from the noticeable changes in terms of content, this also means that the legal basis of European jurisdictional law in the UK is now to be found in the European Communities Act 1972, section 2 (l)¹².

C Regulation 44/2001

The council of the European Union shed light on this convention knows as Council Regulation (EC) No 44/2001. As per the provisions of Article 234, The European Community establishes this in order to take care of the general provision and relations with other instruments¹³. This convention has been made regarding proposal from commission’s end. Opinion of the European parliament and Economic and social committee regarding these context the community has formulated specific regulations and rules. In case of enhancing these areas the EC should adopt among the other things which are in relation to judicial cooperation regarding the case of civil matters that are most important for the internal market¹⁴. Contradicting in this matter, some dissimilarity between the national regulations and policies are potential of hampering operations of internal market in the context of governing jurisdiction and recognition of judgments¹⁵. However, the regulation are not potential of being sufficiently achieved by the Member States and can be achieved than by the Community. This particular regulation defines itself in the manner that the minimum requirement should be met in order to achieve those objectives and which will not go beyond the important elements that are necessary for the purpose¹⁶. Accession of the new member states to that convention is known as Brussels Convention. In the year of 1988, on 16th September Member states along with EFTA states concluded the Lugano convention in context of jurisdiction as well as the enforcement of judgments in context of Civil as well as Commercial Matters. Thus, if influence the commercial as well as officials. This is the same Convention to the 1968 Brussels Convention. A series of methodologies have been introduced by the council to revise those Conventions. Along with that people in council have approved the revised document. Along with that a Community legal instrument, by which the recognition and enforcement of judgments has been governed, which is binding and directly applicable as per Article 59(1)¹⁷. Brussel I Regulation (Regulation 44/2001) has been regarded most highly by the practitioners, academics and English courts. The regards have been attributed to the balanced judgement and accuracy in the aspects of commercial and civil litigation governed by it across the 28 member states of European Union¹⁸.

In the case of ECJ 1 March 2005 ‘Owusu v Jackson c.s. the article no 2 of Brussels I regulation (44/2001) has been applied in the proceeding as the courts of a contracting member state have been domiciled in the state while the litigation has a certain connection with a third state¹⁹. This has the provision of covering relationships between the contracting state and non contracting states.

D Recast Regulation 1215/2012

Recast Regulation is adopted by the European parliament and the council in the year of 2012, on 12 December, which is the replacement of 44/2001 (Brussels I Regulations). This decision has been taken based on the jurisdiction and the recognition and enforcement of judgments in the field of civil and commercial matters²⁰. This regulation has brought in action from January 10, in the year 2015. The reason why the recast regulation has brought in action is, for some heavily criticized aspects of Brussels I Regulation related to EU Member State. There exists three aspects to such matters are as follows: Jurisdiction agreements that are involved between non-EU parties or non-EU courts. As per the jurisdictional agreements under Article 25 of the Recast Regulation, provides the information that if the parties have agreed that a court of a Member State have to take care of the jurisdiction than the court shall have jurisdiction. In the context of Article 25 if a non-European Union court is specified under a jurisdiction clause, than the previous mentioned agreements will still fall outside the regulation. As per the information provided by, Article 33 and 34, EU courts with discretion to stay in the process of proceeding where the same matters or related matters to the previous matters are already present before the courts of a non-European Union court²¹. The latest recast of regulation in 2012 has experienced considerable changes in case laws regarding intellectual property litigation. A different law source has made use of CJEU and Swedish and English case law in order to indicate in which ways CJEU case law and EU have been applied to the member states²².

In Bolagsupplysningen OÜ, Ingrid Ilsjan v Svensk Handel AB (BOÜ/Ilsjan), the ECJ has ruled that a legal individual can come up with an action for damages for requesting the correction and removal of alleged defamatory information in the courts of member state where the individual has cantered interest²³. It has been applied in accordance with the special rule under Article no 7(2) of Recast Regulation No 1215/2012.

Impact of Brexit on the changes of Recast Regulation

In the year of 2017, on March 29, the UK government has served a formal notice under the Article 50 of The Treaty on European Union in order to terminate UK’s membership of the European Union²⁴. In 2018, 26th June the European Union (Withdrawal) Act 2018 (“EUWA”) has been applied. In the context of Recast Brussels Regulation, parties who are in a noticeable period given by the court and waiting for the judgment, which needs to be enforced in another EU state should take this matter in serious note and plan the steps to enforce it as soon as possible practically²⁵. This method will ensure that the parties will be able to take advantage of the enforcement mechanisms that has been built in the Recast Brussels Regulation. It will become a serious issue if the enforcement mechanism, which is under the sections of Recast Brussels Regulation stops to be available and this could affect the way of English court judgments that are enforced in European Union Member states. Parties have been advised to deal with this situation that encountered by the Brexit that how the enforcement judgment will be dealt with in EU member states where the parties supposed to present. They are advised to take quick action because of the Recast Brussels Regulation ceases to apply as between the UK and those member states. Rules which address different issues (contractual and non-contractual obligations) are currently contained in the Recast Brussels Regulation²⁶.

Conclusion

In context of above mentioned sections it can be conclude that the jurisdiction law of for
personam is the most common and important law for the defendant to bind
the defendant in an obligation. As per the findings in the section of laws related
to English jurisdiction, if the dispute domiciled in England than he/she will
not be allowed to argue over anything related to determination of the matter in
any other jurisdiction. Various articles and section have been discussed which
are laid under Brussels convention. Different application regarding Civil Jurisdiction and Judgments Act 1982 has been highlighted in the above sections. It can be seen that the Lugano Convention comes in action after application of these act. Some changes are mentioned that has been done by San Sebastian Convention Brussels Convention. In order to meet all the expectation and overcome the drawbacks of Brussels Convention Regulation 44/2001 has come into force and in order to overcome the drawbacks of this regulation the Recast Regulation 1215/2012 has been highlighted and applied to European Union which has some significant effects on Brexit.

Reference List

Journal articles

Beaumont, Paul, Lara Walker, and Jayne Holliday. “Parental responsibility and international child abduction in the proposed recast of Brussels IIa Regulation and the effect of Brexit on future child abduction proceedings.” International Family Law Journal [2016] 4 1369, 5762.

Beaumont, Paul. “Private international law concerning children in the UK after Brexit: comparing Hague Treaty law with EU Regulations.” Child and Family Law Quarterly [2017] 29 3 213, 232.

Bogdan, Michael. “The new EU regulation on online resolution for consumer disputes.” Masaryk UJL & Tech [2015]  9 155.

Burns, Charlotte, Judith Clifton, and Lucia Quaglia. “Explaining policy change in the EU: financial reform after the crisis.” Journal of European Public Policy [2018 ]25 5 (2018 728, 746.

Fitchen, Jonathan. “Ulrich Magnus and Peter Mankowski (eds), European Commentaries on Private International Law: Volume 1 Brussels Ibis Regulation.” [2017]: 138-139.

Gumbrell-McCormick, Rebecca, and Richard Hyman. “What about the workers? The implications of Brexit for British and European labour.” Competition & Change [2017]21 3 169, 184

Gumbrell-McCormick, Rebecca, and Richard Hyman. “What about the workers? The implications of Brexit for British and European labour.” Competition & Change [2017]21 3 169, 184.

Horn, Anna. “Cross-border enforcement of patents in the European Union: an analysis of the Brussels Regulation No 1215/2012 and the provisions on local jurisdiction in the Agreement on a Unified Patent Court.” [2017] 5 165.

Loader, Ian. “In search of civic policing: recasting the ‘Peelian’principles.” Criminal law and philosophy [2016] 10 3 427, 440.

Masouros, Pavlos, and Thomas Papadopoulos. “The Impact of Brexit on UK Company Law.” European Company Law [2016]13 6 208, 209.

McCormack, Gerard. “Something old, something new: recasting the European Insolvency Regulation.” The Modern Law Review  [2016] 79 1 121, 146.

Zhang, Daoning. “Reconsidering procedural consolidation for multinational corporate groups in the context of the Recast European Insolvency Regulation.” International Insolvency Review  [2017] 26 3 332, 347.

Legislation

Civil Jurisdiction and Judgments Act (CJJA) 1991

Civil Jurisdiction and Judgments Act (CJJA) 1991. Section 1 (1)

Civil Jurisdiction and Judgments Act 1982

Civil Jurisdiction and Judgments Act 1982, s2(I)

European Communities Act 1972, section 2 (l)

Recast Regulation 1215/2012

San Sebastian Convention

Case laws

Four Seasons Holdings Incorporated (Appellant) v Brownlie (Respondent)

Horn, Anna. “Cross-border enforcement of patents in the European Union: an analysis of the

Bolagsupplysningen OÜ, Ingrid Ilsjan v Svensk Handel AB (BOÜ/Ilsjan)

Maharanee of Baroda v. Wildenstein

ECJ 1 March 2005 ‘Owusu v Jackson c.s.

 

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