Exceptions to general rules are construed narrowly
The ‘construction of exceptions’ principle requires, and has always required, exceptions to the principle of domiciliary jurisdiction to be construed restrictively, or at any rate no more broadly than is required to give effect to the purpose of the exceptional provision. In other words, the principle that a defendant may expect to defend at home is the fundamental principle of civil or commercial jurisdiction. Other jurisdictional rules are to be seen as exceptions, to be given no wider an interpretation than is necessary to achieve the purposes of the Convention in general and the individual Article in particular.
A claimant who, for example, wishes to rely on Article 5 of the Convention to sue the defendant in a Lugano State other than that of the latter’s domicile, may find it less easy than may be suggested by the first reading of the text. While many of the individual provisions of the Convention prevail over the domiciliary principle, the
B JURISDICTION ACCORDING TO LUGANO/BRUSSELS protection of the primacy or centrality of the domiciliary rule, by the narrowing of these other provisions, is a clear trend. On occasion, the narrow construction of exceptions to the domiciliary principle appears to have gone too far, especially where the consequence of adopting a narrow interpretation of a particular provision increases the risk of inconsistent adjudications and irreconcilable judgments.[1]
The principle that exceptions to the rule of domiciliary jurisdiction are construed narrowly makes sense within the Convention. Indeed, the European Court once described the relationship between Article 5(1 )(a) and 5(1 )(b) as being one of general principle and particular exception: part of the justification for the conclusion that a licensing agreement was not within Article 5(1 )(b) was that this provision was to be seen as an exception to Article 5(1 )(a), which stretches the point rather too far.
It has been suggested, and is probably correct, that the exceptions to the material scope of the Convention which are stated in Article 1 (2) are to be construed restrictively, on the footing that they constitute subject-specific exceptions for certain civil and commercial matters which derogate from the more general scheme for jurisdiction and judgments in civil and commercial matters. Such an approach is defensible when the material question is whether a matter is a ‘general civil or commercial’ one, or one of the ‘special civil or commercial’ matters listed in Article 1(2).
This principle would, however, not justify giving a broad interpretation to the expression ‘civil and commercial’, on the pretended basis that matters which are not civil or commercial are exceptions to the Regulation which must, for that reason, be given a narrow scope: any such reasoning would be fundamentally flawed. Matters which are not civil or commercial in the first place were never within the scope of the legislation. However, in flyLAL-Lithuanian Airlines AS v Starptautiska lidosta Riga FAS the European Court offered the view that ‘civil and commercial’ was to be interpreted broadly so as to ensure that the scope of ‘not civil and commercial’ is made narrow, as befits an exception: its comment does not appear to be based on careful reflection; if it ever matters, it should not be taken as correct. The point is considered further in Chapter 5.
The risk of irreconcilable decisions must be minimised
The Convention seeks, as the Regulation had sought, to facilitate the easy, almost automatic, enforcement of its judgments. It is therefore necessary to prevent, as far as possible and from the outset, the existence of concurrent proceedings in thecourts of two or more Lugano States. Forceful judgments[2] have insisted on a broad and purpose-driven application of the provisions for dealing with Us alibi pendens. It also discourages a court from adopting an interpretation of an Article which would lead to a multiplicity of courts having jurisdiction over a claim, or over parts of a claim.
- [1] Especially in relation to Art. 6. 2 C-533/07 Falco Privatstiftung v Weller-Lindhorst [2009] ECR 1-3327. 3 C-292/08 German Graphics Graphische Maschinen GmbH v Holland Binding Bl' (in liq) [2009] ECR 1-8421: C-157/13 Nickel & Goeldner Spedition GmbH v Kintra UAB EU:C:2014:2145, [2015] QB 96; C-295/13 H v //KEU:C:2014:2410. 4 Having said that, in the scheme of EU law, the matters excluded by Art. 1(2) were mostly intended to be dealt with by specialist Regulation which would deal comprehensively with jurisdiction, applicable law and judgments. There is no corresponding structure associated with the Lugano Convention, so the reasoning is not automatically transferable. 5 C-302/13, EU:C:2014:2319, [2015] ILPr 28, followed on this point by C-73/19 Belgium v Movie BV EU:C:2020:568.
- [2] 144/86 Gubisch Maschinenfabrik KG v Palumbo [1987] ECR 4861; C-351/89 Overseas Union Insurance Ltd v New Hampshire Insurance Co [1991] ECR 1-3317; C-406/92 The Tatry [1994] ECR 1-5439. 2 For the most obvious example, see C-281/02 Owusu v Jackson [2005] ECR 1-1383, [38] [46]. 3 C-288/92 Custom Made Commercial v Stawa Metallbau GmbH [1994] ECR 1-2913. 4 C-269/95 Benincasa v Dentalkit Sri [1997] ECR 1-3767; C-381/08 Car Trim GmbH v KeySafety Systems Sri [2010] ECR 1-1255. 5 For the recent examples, see C-204/08 Rehder v Air Baltic Corp [2009] ECR 1-6073; C-157/13 Nickel & Goeldner Spedition GmbH v Kintra UAB EU:C:2014:2145, [2015] QB 96. 6 Without prejudice to the specific case: C-288/92 Custom Made Commercial v S/auw Metallbau GmbH [1994] ECR 1-2913.
