B JURISDICTION ACCORDING TO THE LUGANO/BRUSSELS RULES

CHAPTER З

THE LUGANO CONVENTION AND ITS INTERPRETATION

Lugano rules or Brussels rules?

When a case is brought or to be brought in the courts of the United Kingdom, and a question of jurisdiction arises, the point of departure will be the impact of the Brussels 1 Regulation or the Lugano Convention. For proceedings in a civil or commercial matter instituted after Completion Day, the applicable rules will not be those of the Brussels I Regulation 1215/2012 as it was, and all its predecessors were, revoked with effect from Completion Day. The applicable rules may yet be those in the Lugano Convention, which was in effect in the United Kingdom because the European Union acceded to it; the willingness of the United Kingdom to rejoin in its own right as an independent state, will, if reciprocated, reinstate these as the jurisdictional rules applied by an English court.

For this reason, after a brief review of the remaining jurisdictional role of the Brussels Regulation, Part B of this book is organised on the basis that the Lugano Convention may be, but the Brussels Convention and Brussels Regulation will not be, the statutory basis for the jurisdiction of an English court from 1 January 2021 or such later date as may be agreed as the first day after Completion Day.

The Brussels Regulation in review

If it is necessary to deal with questions of jurisdiction in proceedings commenced before Completion Day, and to which the Brussels 1 Regulation (and, indeed, the Lugano Convention so far as concerned relevant points of contact with Iceland, Norway, and Switzerland were concerned) applied, the following summary may suffice.

For proceedings commenced on or after 1 March 2002 but before 10 January 2015, Regulation 44/2001^[1] will have been applicable. For proceedings commenced on or after 10 January 2015 but before Completion Day, Regulation 1215/2012 was and is applicable.

The Brussels 1 Regulation was the successor in title to the Brussels Convention, and save for obvious and apparently deliberate alterations to the text found in the Convention, it intended to reproduce, and was interpreted as though it reproduced, the law established by the Convention. The same principle of continuity of interpretation applied where the recast Regulation 1215/2012 reproduced the text of Regulation 44/2001.^[2]

Jurisdictional connections with other territories

There were certain small territorial jurisdictions to which the Brussels Regulation did not extend, but for which other arrangements were in place. For example, the Brussels Convention originally applied, and continued to apply, to territories to which the Regulation did not extend. In effect, this meant that the Brussels Convention applied to the French Overseas Collectivities (formerly Territories) of New Caledonia, French Polynesia (which includes Tahiti), Mayotte, the Wallis & Futuna Islands, and in St Pierre & Miquelon; and to the Dutch possession of Aruba. However, for these territories the Brussels Convention was superseded by the 2007 Lugano, Article 69(7) of which provides for the Lugano Convention to supersede the Brussels Convention where these territories are concerned. If the Lugano Convention applies to the United Kingdom it will be found to apply to these territories.

None of the Brussels/Lugano instruments applied or applies to Monaco, Andorra, San Marino, the Vatican City and Liechtenstein: for jurisdiction and judgment purposes they are just about as foreign as China or Peru. The same is true for the Isle of Man and Channel Islands.

• [1] [2001] OJ L12/1. 2 [2012] OJ L351/1. 3 Regulation 1215/2012, Art. 81. 4 Civil Jurisdiction and Judgments Act 1982, Sch. 1 (as amended).
• [2] Recital (34) to Regulation 1215/2012, second sentence. 2 Recital (23) of Regulation 44/2001. 3 However, the Brussels I Regulation applies in Guadeloupe, French Guiana, Martinique and Réunion, because these are overseas departments of France. 4 In truth, it is very hard to say whether the Lugano Convention (rather than the Brussels Convention) applies to Aruba. 5 In fact, four: Denmark acceded in its own right, and not as a Member State. 6 The Lugano II Convention is published at [2007] OJ L339/1. For the ruling of the European Court that the negotiation of the new Lugano Convention was a matter within the competence of the European Union, rather than the Member States, see Opinion 1/03 Lugano Convention [2006] ECR 1-1145. An expert Report on the Lugano II Convention by Professor Pocar is published at [2009] OJ C319/1.