Legal certainty, predictability, and proximity, should be supported
The principle of ‘legal certainty’ means that the interpretation adopted should be one which contributes, or is not damaging, to the idea of legal certainty. There are several aspects to the principle of legal certainty, of which five in particular call for mention.
First, legal certainty is the basis for objection to the common law’s approach to questions of jurisdiction in general, and to its understanding that judicial discretion is a necessary or desirable element of jurisdictional law in particular. For this reason, arguments which seek to show that a jurisdictional rule, otherwise applicable, should not be applicable because its underlying purpose does not apply to the instant case, will be unprofitable. More generally, a definition of a term such as ‘consumer’ which was liable to require the court to decide whether a person deserved that privileged status, by reference to a variety of socio-economic factors, is unlikely to be favoured.
Second, and rather more justifiably, the principle will tell against a proposed construction of the Convention which would have the effect of leaving an intelligent claimant uncertain about where he will be able to sue, or a well-informed defendant unable to predict where he may be liable to be called to account. The existence of autonomous definitions of the terms used in the Convention is helpful, but approaches to interpretation, put forward especially in relation to special jurisdiction, may be measured against the requirement that they contribute to the goal of legal certainty. Judgments have been given in favour of interpretations of the special jurisdiction provisions, in particular, which would tend to prevent the multiplication or fragmentation of jurisdiction where claims arise within a single legal relationship; judgments have also rejected approaches which would require a national court to conduct an investigation of issues of applicable law in order to decide whether it had jurisdiction in the first place.
Third, a court may invoke objectives of ‘proximity and predictability’, which are perhaps best seen as particular manifestations of the general principle of legal certainty. The ‘proximity’ component of this, especially in relation to the rules of special jurisdiction in Article 5, may be used to support an interpretation of a particular provision which will tend to mean that, generally, the court with special jurisdiction is one which will have a natural and foreseeable connection, a close link, to the facts which give rise to the dispute. This will, at least in principle, tend to improve the quality of the adjudication. Even so, it is important to appreciate the abstract nature of the reasoning at this point. A court will not have special jurisdiction simply because it has a close link to the dispute; and a court will not lack special jurisdiction if, on the facts of the instant case, the application of Article 5 gives jurisdiction to a court which, atypically perhaps, does not have a close connection to the facts.[1]
However, one principle probably does not operate in the way it used to. The position of the Brussels Regulation within the broader framework of European law meant that its interpretation had to take account of the (European) principle of effectiveness. What that appeared to mean was that rules of national procedural law might not encroach on a rule of European law so as to undermine the application and intended effect of the rule of European law. It seems clear that this does not make a specific contribution to the interpretation of the Lugano Convention, at least so far as nonMember States are concerned.
All Lugano courts are of equal authority
We must start with some pure European law. As this applied to the Regulation, it meant that the court of one Member State may not speak ill of a court in another Member State: de ittdice nil nisi bonum, as one might say. It was held to be impermissible for a court in one Member State to find fault with the proceedings or process before the courts of another Member State, and to draw the conclusions which might be thought to follow from such a finding of fault.
The precise basis for this principle was always obscure. However, a court called upon to recognise the judgment of a court in another Member State was absolutely forbidden to review the substance of the judgment. So far as the exercise of jurisdiction by the other court is concerned, the court called upon to recognise a judgment may not review the jurisdiction of the court which gave the judgment; and where jurisdiction has been based on Article 4, it may not find this rule of jurisdiction, or its exercise, to be contrary to its public policy.
From that statutory basis an intermediate principle was deduced: that a court in one Member State was forbidden to review the jurisdiction of a court in another Member State outside the context of the recognition of judgments; and that it followed that a court may not take any step or make any order which is predicated on its having reviewed the jurisdiction of the courts of another Member State: it was forbidden to adjudicate as a consequence of its conclusion that the courts of the other Member State do not have or should not exercise jurisdiction, because that conclusion is one which involves a judgment which the court is almost always forbidden to make. The justification was that the Brussels Regulation is part of the law of all Member States, and as there was no reason to suppose that any national court is blessed with superior skills in the art of interpretation, a court was free and bound to decide whether it had jurisdiction, but may not decide whether another court had or has it.
This led to the final and definitive statement of the principle: to the proposition that the courts of the Member States were required to repose trust in one another’s legal systems and judicial institutions.[2] Not only did that explain the intermediate principle mentioned above, but ‘mutual trust’ was the principal reason why the grant of an anti-suit injunction, ordered to restrain a person from bringing proceedings before the courts of another Member State whose only purpose was to undermine the jurisdiction of the English courts and to oppress the impecunious claimant in those English proceedings, was impermissible. This was surprising when one observed that there were some courts, in parts of the European Union, whose reputation for impartial excellence and adjudicatory expertise is not quite so easily vouched for; but membership of the European Union requires one to take the rough with the smooth, the bitter with the sweet, and not always in balanced or measured quantities.
The question whether the same principles of mutual respect apply as between the courts of states bound by the Lugano Convention is one whose answer may not be beyond argument. To the extent that the operation of Regulation law flowed from principles of European law, the reasoning will not apply in a Lugano State which is not also a Member State. However, there must be a very strong probability that the interpretation of the Lugano Convention will be held to produce the same results, and that the justification will be that the relations in this respect between the Lugano States are to be regarded as being as fraternal as those of the Member States. There is no reported case in which a court in a Lugano State has interfered in or reviewed and found wanting the jurisdiction of another Lugano State; and it would be most surprising if courts in the United Kingdom were to discover a freedom from mutual restraint which no other court had discerned to be inherent in the Convention. The justification for the continuation of this principle of interpretation will be that the Lugano Convention is so closely modelled on the Brussels Regulation as makes this inevitable.
Securing uniformity of interpretation of the Lugano Convention
The procedural mechanisms for securing consistency or uniformity as between the Brussels I Regulation and the Lugano 11 Convention are made more complicated by the fact that the Lugano States which are not also Member States of the European Union have neither the general obligation to follow decisions of the European Court nor the power to refer questions to that Court for a preliminary ruling. The original Lugano Convention dealt with this slightly unsatisfactory state of affairs by means of a Protocol which contained declarations by the Member States of the European Union, and the EFTA States, declaring that their respective courts were to ‘pay due account’ to decisions handed down in other countries. This ramshackle mechanism was never really put to the test; and anyway, it was not really appropriate when the
Lugano II Convention was made as a treaty by the European Union rather than by the Member States.
Protocol No 2 to the Lugano II Convention requires any court applying it to have regard to any relevant decision in relation to the original Lugano Convention and on the Brussels I Regulation 44/2001, but it goes further. If a Member State refers a question on the interpretation of the Lugano Convention to the European Court, a Lugano State is entitled to make written submissions to the European Court; and this opportunity is widened to allow the Lugano States to make submissions when references are made in respect of the Brussels I Regulation. All this is designed to produce harmony between the respective instruments, though this will be impaired if Lugano II is not amended to align it with the recast Brussels I Regulation 1215/2012.
1
There would be nothing but arid technicality in a contention that Art. 64(1) does not mention Regulation 1215/2012 (which it obviously could not have done) and that Protocol 2 to the Lugano II Convention does not therefore direct attention to rulings on this Regulation.
- [1] C-288/92 Custom Made Commercial v Stawa Metallbau GmbH [1994] ECR 1-2913 (a case decided on an earlier version of Art. 5(1)). 2 See Arts 34 and 35 of the Convention and of Regulation 44/2001. It was reproduced in Regulation 1215/2012. 3 C-351/89 Overseas Union Insurance Ltd v New Hampshire Insurance Co [1991] ECR 1-3317; C-163/95 Von Horn v C/nnamon
- [2] C-l 16/02 Erich Gasser GmbH v MISAT Sr! [2003] ECR 1-14693. 2 C-159/02 Turner v Grovit [2004] ECR 1-3565. Applied in C-185/07 Allianz SpA v West Tankers Inc [2009] ECR 1-663. 3 In C-394/07 Gambazzi v Daimler Chrysler Canada Inc [2009] ECR 1-2563 the European Court (for the first time, so far as can be seen) made reference to the obligation to pay attention to the decisions of courts of Contracting States (in casu, the Swiss Federal Tribunal so far as it had made a ruling at an earlier stage of the complex litigation between the parties). But it is not clear that this was anything other than a cosmetic or diplomatic reference, as nothing appeared to flow from it.
