Introduction: This paper compares the English traditional law with the European Community (EC), law on jurisdictional value. It aims to explain and elucidate the reasons why the former set jurisdictional rules values flexibility and justice and the latter sets of rules values predictability and certainty. It will examine their political or historical background, as well as their goals and the bases for assuming jurisdiction. It will highlight differences between these jurisdictional systems with the help of authorities such as significant Court cases or books that, in addition to explaining or simplifying law, have contributed to its evolution.
Definition: Although there are many meanings to the word “Jurisdiction”, it is generally understood as the Court of law’s ability or authority to decide the issues that it is dealing with. The Court’s ability or inability to resolve a particular matter is determined by the rules of Jurisdiction.
When more than one Court has jurisdiction, the complexity of jurisdictional issues can result. This is a problem not only for international trade and business (who might be placed in an invidious situation where they are unaware the extent of their responsibility), but also sovereign states who seek to trade with one another without having to ruin their amicable relationship.
English Law: Because it has the common law at its heart, the English law system has played a significant role in interpreting the law on many issues. This is largely due to the presence of intellectuals and other experts who have assisted it.
The common English tradition (or traditional English law) refers to the case laws, which have become an authority on the subject matter. Even though legislations may have been more remedial than necessary, they played an important role in the U.K’s entry into the European Union (EU). It seems reasonable to permit the judge to test legislation when it is required by change in circumstances that can be given effect with relative ease.
The traditional English rules were used in all cases before the introduction of the Modified Regulation and the Brussels/Lugano System.
Different regimes determine the jurisdiction of English courts:
1. The Brussels I Regulation (hereinafter referred to as the “Regulation”) is an amended version of the Brussels Convention, but it still applies a similar system for rules regarding jurisdiction.
2. The Modified Regulation, which gives jurisdiction in the U.K. under certain circumstances.
3. The traditional English rules.
Other rules regarding jurisdiction exist, such as the EC/Denmark Agreement concerning jurisdiction and those contained in the Lugano Convention. However, their scope is limited to cases in which the defendant is domiciled either in Denmark (in the case of the former) or in an EFTA member country (in the case of both). The Brussels Convention is applicable to Denmark only.
The EC law: The European Community seems to be more concerned with the legislative work than making laws. The EC believes it is more important for their legal system to be based on a codified structure. This it defends, among other reasons, because it makes it easier to understand. English laws, on the other hand, seem to place more emphasis upon having a common or judge-made law background. This anvil enables one to see the differences between the legal systems and their respective values. It is a fundamental difference in how the issues are approached, even in cases with similar objectives.
The EC law regarding jurisdiction is more focused on predictability and certainty than matters like justice or flexibility. This can be seen in the 11th recital of Regulation, which states: ‘The rules for jurisdiction must be highly predicted and based on the principle of jurisdiction must generally be based upon defendants domicile and jurisdiction must always exist on this ground except in very limited situations …’
The 26th recital, however, is the only mention of flexibility in Regulation. It states that rules in regulation can be flexible to the extent that they allow specific procedural rules for member states.
The EC law on jurisdiction states that parties to a dispute must be able to predict which jurisdiction they can sue or be sued within. The EC law on jurisdiction gives priority to the primary goal of harmonizing laws on jurisdiction within its territory. It makes it mandatory to maintain the principle of strict accuracy while giving second place to the objective to justice for the parties. While the traditional English and EC laws may have different reasons and justifications for following a system, it seems that this is not only a difference in approach or attitude, but also a question of prioritization of the EC and traditional English jurisdictional goals. As will be obvious, the cases listed below are those that were decided under the Brussels Convention, which can be used to interpret the Regulation’s rules.
Comparative Analysis of EC Law vs English Law
Bases of Jurisdiction. The main difference between the traditional English law and the EC law regarding jurisdiction is the discretion that each body of law grants to judges when deciding the jurisdictional issues. The Regulation makes the assumption of court jurisdiction mandatory, and the court cannot decline it. However, the English traditional rules make the assumption of courts jurisdiction discretionary.