Geographical scope

In principle, the geographical scope of the Convention is the territory of the Member States of the European Union, together with Iceland, Norway, Switzerland, and the United Kingdom. A more specific definition of certain countries is required to map the precise extent of the Lugano Convention: the countries concerned are France, the Netherlands, Denmark, Portugal,Spain, Finland and Cyprus. So far as the United Kingdom is concerned, the position of Gibraltar is complicated, but the Lugano Convention does not apply to the Channel Islands, Isle of Man, or the sovereign base areas of Akrotiri and Dhekelia. Definitely excluded from the list of Lugano States are Albania, Montenegro, North Macedonia, Serbia and Turkey; likewise Andorra, Liechtenstein, Monaco, San Marino and, needless to say, the Vatican City.

Personal scope

The personal scope of the Convention is not specifically limited. It applies to all persons who are defendants in proceedings falling within its domain, and it applies to all persons who are claimants in proceedings falling within its domain. It is certainly not limited to claims against defendants who have a domicile in a Lugano State, though these will be the most frequent of defendants, and is certainly not restricted to proceedings instituted by claimants with a domicile in a Lugano State." As there is no reason to suppose that the jurisdictional protections put in place by the Convention are available to defendants only when they are sued by claimants who are themselves domiciled in Lugano States, it must follow that the Convention applies without regard to the domicile of the claimant. The European Court held that this was so under the Brussels Convention,^[1] and the same is surely true for the Lugano Convention.

International scope

It is next necessary to consider another aspect of the scope of the Lugano Convention: its ‘international scope’.

The Convention states, as instruments prior to Regulation 1215/2012 had all also stated, that the parties to the instruments considered it ‘necessary for this purpose to determine the international jurisdiction of the courts’. This clearly means that the Convention deals with jurisdictional issues which are international in the sense of implicating the courts of more than one Lugano State. It could be argued that it was not made to govern jurisdiction in two other classes of case: first, where the issue was one of purely national jurisdiction, namely whether the courts of one city or another, or one part of the United Kingdom or another, had jurisdiction; and second, where the question raised in the proceedings was whether the courts of a single Lugano State or a non-Lugano State had jurisdiction. What these cases have in common is that in neither was there any issue as to which of two or more Lugano States had jurisdiction in the matter.

The proposition that questions of jurisdiction which were purely internal to a single State are not touched by the Convention was vouched for by Jenard. He stated’ that the original Brussels Convention was not to affect the jurisdiction of courts where the facts lacked any international element: in such a case the domestic law of that State alone governed the jurisdiction of the courts. To answer any question of internal or national jurisdiction arising in such cases, for example, to allocate jurisdiction as between the parts of the United Kingdom, a court would look only to rules of national law which would apply where the Convention allocated international jurisdiction to the courts of the United Kingdom as a State or as a whole, and the question was which part of the United Kingdom had national jurisdiction. The law on this point is substantially unchanged. The result is that where the question of jurisdiction is entirely confined, internal, to the United Kingdom, the decision which court within the United Kingdom has jurisdiction is a matter of internal United Kingdom law, not a Convention issue.

For the second point, three paragraphs of history are needed to explain the law. There was in England a tendency, or temptation, to argue that the Brussels Convention did not apply, and was an irrelevance, where the only disclosed jurisdictional connections were between the United Kingdom and a non-Contracting State, on the footing that in such a case the issue for decision was not concerned with ‘international’jurisdiction in the sense of ‘inter-Contracting State’ jurisdiction. This perception led the English courts to hold that the Brussels Convention ‘did not apply’ to an application for a stay of proceedings, brought against an English-domiciled company, in favour of the courts of Argentina;^[2] and it was also considered that nothing in the Convention prevented a stay of proceedings, in favour of the courts of Greece, which had been brought against a defendant who did not have a domicile in any Contracting State. The same reasoning would certainly have been applied to the Lugano Convention.

In Owusu v Jackson, a claim was made against six defendants, one domiciled in the United Kingdom and five in Jamaica, in a personal injury claim arising out of a holiday accident in Jamaica. It was contended that as the only Contracting State with jurisdiction was the United Kingdom, and as no other Contracting State had jurisdiction, any ‘internationality’ was only as between the United Kingdom and a non-Contracting State, with the result that the proceedings fell outside the material scope of the Convention. The European Court disagreed, ruling that the requisite international element could be found in connection to a non-Contracting State. It rejected the argument that, as the original justification for the Convention was to secure the free movement of judgments within the community of Contracting States, the jurisdictional rules established to that end were inapplicable where there was no issue of internationality as between the Contracting States. Rather, it said that the uniform rules of jurisdiction contained in the Brussels Convention:

‘are not intended to apply only in situations in which there is a real and sufficient link with the working of the internal market, by definition involving a number of Member States. Suffice it to observe in that regard that the consolidation as such of the rules on conflict of jurisdiction and on the recognition and enforcement of judgments, effected by the Brussels Convention in respect of cases with an international element, is without doubt intended to eliminate obstacles to the functioning of the internal market which may derive from disparities between national legislations on the subject ...It follows from the foregoing that Article 2 of the Brussels Convention applies to circumstances such as those in the main proceedings, involving relationships between the courts of a single Contracting State and those of a non-Contracting State rather than relationships between the courts of a number of Contracting States.’

And that was that: there was a requirement of internationality, and this was satisfied by an actual connection to Jamaica or its courts. As the Lugano Convention is, on this issue, worded identically, there is no doubt that the effect of Owusu v Jackson governs it as well.

By contrast with the old Brussels Convention and the Lugano Convention, the Brussels I Regulation did not explicitly state that its purpose was to determine the international jurisdiction of the courts of Member States; it had therefore been asked whether this makes any appreciable difference to the operation of its rules of jurisdiction. The answer appears to be that there is a requirement of internationality, but that the manner in which this may be satisfied may be arbitrary. It is certain that Owusu would be decided the same way under the Regulation as it was and would be under the Convention, for continuity of interpretation is understood to be required by the principle of legal certainty.^[3] Although the European Court has indicated that a requirement of internationality still applies to define or to limit the material scope or operation of the Brussels Regulation, it may be satisfied by an inessential point of contact with a foreign country, such as where a claim is advanced against a local defendant at the same time as a claim is made against a co-defendant who is not local. It appears to follow that the answer would have been the opposite, and the Regulation would not have applied, if the foreign co-defendant had not been sued, or had been sued but in separate proceedings, which as an outcome seems more arbitrary than it should be. The requirement of internationality is also satisfied if the defendant is a foreign national and it is not possible to determine where he is domiciled.

So much for the history. The result is that if a matter is demonstrably wholly internal to the United Kingdom, so that the only jurisdictional question is as to the part of, or place within, the United Kingdom which has jurisdiction, it is not one in which the Convention is designed to have any role. The point may be illustrated this way. Suppose a defamatory statement is made by a person domiciled in the United Kingdom about another such person, and is published in newspapers in England and Scotland. If the question is whether the claimant may or must sue in England or Scotland, or whether the courts of England or Scotland may stay proceedings on grounds of forum non conveniens in favour of the other jurisdiction, the Convention has no role in answering the question, for the question of jurisdiction over the matter before the court is wholly internal to a single Lugano State. By contrast, if the claim is broadened to include complaint of publication by a person outside the United Kingdom, whether the defendant or another, it appears that the Convention would then apply to all aspects of the jurisdiction of the court.

• [1] C-412/98 Universal General Insurance Co v Groupe Josi Reinsurance Co SA [2000] ECR 1-5925; on this point the decision is consistent with C-351/89 Overseas Union Insurance Ltd v New Hampshire Insurance Co [1991] ECR 1-3317. 2 [1979] OJ C59/1, 8. 3 In civilian systems, the courts for the defendant’s domicile will always be competent, and for the Convention to provide that they have jurisdiction will not alter the law in force. 4 Of course, everything turns on the meaning of ‘international’. 5 Cook v Virgin Media £./
• [2] Re Harrods (Buenos Aires) Ltd [1992] Ch 72. In Lubbe v Cape Pic [2000] 1 WLR 1545, the House of Lords acknowledged that the law was unclear and that, in an appropriate case, a reference to the European Court would have been appropriate. 2 Haji-Ioannou v Frangos [1999] 2 Lloyd’s Rep 337. 3 C-281/02, [2005] ECR 1-1383; see also C-641/18 LG v Rina SpA EU:C:2020:349, [2020] ILPr 536. 4 At [34]—[35].
• [3] C-533/07 Falco Privatstiftung v Weller-Lindhorst [2009] ECR 1-3327, [49] [51]; C-167/08 Draka NK Cables Ltd v Omnipol Ltd [2009] ECR 1-3477, [20]. 2 C-478/12 Malefic v Lastminute.com GmbH EU:C:2013:735, [2014] QB 424. The proposition in the text was approved in Cook v Virgin Media £/