MATERIAL AND OTHER SCOPE OF THE LUGANO CONVENTION

General

For the Lugano Convention to determine jurisdiction in a particular matter, the proceedings must fall within its domain. If they do not, the Convention has no relevance or application to the jurisdiction of the court: in such cases, courts will apply their national law rules on jurisdiction, including where applicable those rules of exorbitant jurisdiction referred to by Article 3 of the Convention. It goes without saying, of course, that if the European Union vetoes the United Kingdom’s application to join the Lugano Convention, none of this will apply and one will go directly to the rules in Part C of this book.

But if the Lugano Convention is in force for the United Kingdom, and if claim made does fall within the domain of the Convention, it will regulate the taking, and the non-taking, of jurisdiction. The first task, therefore, is to map the boundaries which mark out the domain of the Convention. This may be examined by reference to various aspects of its scope: its temporal, geographical, personal, international, and material scope; and its relationship with other instruments.

Temporal scope

Article 63( 1 ) of the Convention provides that

I. This Convention shall apply only to legal proceedings instituted and to documents formally drawn up or registered as authentic instruments after its entry into force in the State of origin and, where recognition or enforcement of a judgment or authentic instruments is sought, in the State addressed...

The Convention takes effect in relation to proceedings instituted on or after the date of its coming into force for the United Kingdom. At the date of writing this is not known. However, for proceedings commenced before 31 December 2020, the Regulation 1215/2012 and the Lugano Convention will have been in force.

For the purposes of this rule, the date on which an action is instituted in England is the date of issue of the claim form, which is to say the date stamped on it by the Registry out of which it is issued. Prior to the coming into force of Regulation 44/2001 and the Lugano Convention, when the law was contained in the corresponding provision of the Brussels Convention, it was debatable whether the relevant date was that of issue

¹

CPRr. 7.2(2).

or of service. But as an English court is now deemed to be seised on the issue of the claim form,^[1] the date of issue of the claim form will be the material date.

• [1] Article 30 of the Lugano Convention. 2 For the purpose of the Brussels I Regulation, France included the overseas départements of Guadeloupe, French Guiana, Martinique, Réunion, St Barthélemy and St Martin, but did not include the overseas collectivities of New Caledonia, French Polynesia, Mayotte, Wallis & Futuna Islands, St Pierre & Miquelon. However, all of these were within the 1988 Lugano Convention, and remained within the 2007 Lugano Convention. 3 It appears that the Lugano Convention does not apply to Aruba (to which the Brussels Convention did apply though the Brussels I Regulation did not). None of these applies to the (former) Netherlands Antilles. 4 For this purpose, Denmark does not include the Færoe Islands or Greenland. Denmark ratified the 2007 Lugano Convention in its own right, as it exercised its power to opt out of the exercise of power in this regard by the European Union. Nothing of substance turns on this. 5 For this purpose, Portugal includes Madeira and the Azores. 6 For this purpose, Spain includes the Canary Islands, Ceuta and Melilla, as the Spanish State considers these parts of the African continent to be part of Spain. 7 For this purpose, Finland includes the Aland Islands. 8 The Brussels I Regulation applied in principle to the whole territory of the Republic of Cyprus, but while the northern part of the island remains under the illegal occupation of the armed forces of the Turkish State and under the unlawful administration of a rebel junta, the application of European law in that part of the Republic of Cyprus is curtailed, and the Government of the Republic of Cyprus is not in dereliction for failing to secure its application in the occupied territory: see C-420/07 Apostolides v Orams [2009] ECR 1-3571. Although the reasoning cannot be quite the same, the Lugano Convention will be similarly limited. 9 The 1988 Lugano Convention did not apply to Gibraltar. For the purpose of the Brussels I Regulation, Gibraltar was (regarded as) part of the United Kingdom and as such was within the scope of the 2007 Lugano Convention. But it is not part of the United Kingdom as a matter of United Kingdom law, and it is as yet unclear whether it will be within the scope of the Lugano Convention if the United Kingdom accedes to it in its own right. 10 C-412/98 Universal General Insurance Co v Groupe Josi Reinsurance Co SA [2000] ECR 1-5925.