Author: Dori
Publication date: 09/10/2024
The article discusses the concepts of jurisdiction and sovereignty, the conflict of laws rules that help to determine jurisdiction, the doctrine of forum non conveniens, and the types of jurisdiction. After an introduction to the basic concepts, the article provides an insight into the Brussels I Regulation's jurisdictional system.
The Concept of Jurisdiction
Jurisdiction expresses the international distribution of disputes and the subordination of the jurisdiction to the courts or other authorities of one or different states.
Jurisdiction and Sovereignty
By virtue of sovereignty, every state has the right to judge, also known as the right of judicial supremacy. No state can be restricted in this right until it has lost or renounced its sovereignty, in whole or in part. A sovereign state may decide for itself who may have recourse to its courts and in what cases, including foreign cases. The rules should be based on expediency on the one hand and on bilateral or multilateral international treaties on the other. Otherwise, court judgments may be rendered that are not recognized by the authorities of another state.
Collisional Norms
Jurisdiction is usually determined by means of a conflict of laws. The conflict of laws rule determines which jurisdictions are involved in the legal relationship to be considered the governing one. In international civil procedural law, most conflict-of-jurisdiction rules are unilateral conflict-of-law rules, i.e., they only decide whether or not the domestic court has jurisdiction in a particular case. The explanation for this is that the jurisdiction of a court of one sovereign state cannot be determined directly by the courts of another sovereign state. A minority of conflict-of-law rules on jurisdiction are bilateral and mostly contained in international conventions.
Forum Shopping
Parallel jurisdictions in different countries are not only a disadvantage for litigants. In the case of several co-existing jurisdictions, forum shopping, the selection of the most appropriate forum, is possible. Despite the pejorative connotation of the name, we are dealing with an institution that is generally accepted and used in private international law. Forum shopping may be carried out by agreement of the parties or by unilateral decision of the plaintiff. The expected benefits may include the substantive law applied by the chosen court and the substantive decision hoped for on that basis, the speed and cost of the procedure, and, not least, the enforceability of the judgment.
Forum Non Conveniens
If jurisdiction is established, the court with jurisdiction and competence to hear the case will be the court of that state. Some countries, however, recognize the forum non conveniens, which originated in Scotland and spread to common law countries. These states allow their courts to decline jurisdiction if they consider that the dispute could be more successfully litigated in another court. The doctrine of forum non conveniens gives the judge discretion in the application of the rules of jurisdiction, which is alien to the thinking of continental law. In cases falling within the scope of the Brussels I Regulation, it is applied only in common law countries, whereas in the Brussels IIa Regulation, it plays a role, albeit a limited one.
Types of Jurisdiction
Various criteria have been developed in the legal literature to classify jurisdiction. The most obvious is the principle of connecting factors, which distinguishes between jurisdictions based on domicile, residence, nationality, location of property, location of legal persons, place of performance, etc. The second classification criterion is based on the fact that the state decides to what extent it will exercise jurisdiction over each of the relationships according to the extent of its interest in them. This latter criterion allows a distinction to be drawn between exclusive, concurrent (concurrent, optional), and excluded jurisdiction.
Brussels I. Jurisdiction of the Regulation
The system of jurisdiction established by the 1968 Brussels Convention, later extended and then elevated to the level of Community law by the Brussels I Regulation, replaces national law in the Member States of the European Union. The Regulation, as the sole source of legislation, supersedes national legislation in its field of application. Community law will apply even where it is identical in substance to national law.
The Binding Force of the Rules
The binding nature of the rules ensures the functioning of the European jurisdictional system. The right of the parties to dispose does not extend to the application of the rules of jurisdiction. They cannot agree to apply national law instead of the rules of jurisdiction provided for in the Brussels I Regulation, and vice versa, if the Regulation provides for the application of national law, they cannot derogate from it in favor of the European rules of jurisdiction. The court must examine its motion to determine whether the European or national rules of jurisdiction apply.
Place of Residence and Citizenship
The Brussels I Regulation's jurisdictional system is based on the defendant's place of residence. Under Article 2(1), persons domiciled in a contracting state—or, in the case of legal persons, domiciled in the territory of a contracting state—may be sued in the courts of that state, whatever their nationality. By applying the principle of actor sequitur forum rei, the regulation seeks to ensure that "every person shall be sued, as far as possible, only in the courts of the state in which he is domiciled.
The Structure of the Jurisdictional System
There are three types of jurisdiction:
General
Special
Exclusive
The starting point of the system is the general jurisdiction based on the defendant's domicile, which is open to all actions and claims falling within the scope of the Regulation. Derogations from the application of the general rules are possible only in the cases provided for in the Regulation. The special designation of jurisdiction applies to the jurisdictions listed in Articles 5 to 7 of the Regulation, which, for the enforcement of the claims specified therein, compete with the general jurisdiction of the state of the defendant's domicile. The special jurisdictions include the rules of jurisdiction in insurance matters, consumer matters, and employment matters, which offer greater legal protection to the more disadvantaged contracting parties (insured, consumer, employee). The Regulation provides for exclusive jurisdiction for certain claims or certain categories of claims, where it allows only a specific court to hear the dispute. In the case of exclusive jurisdiction, neither the rules on general jurisdiction nor those on special jurisdiction apply. Like national law, the Regulation allows the parties to agree on jurisdiction.
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