Maritime and other conventions

Among the particular conventions to which Article 67 will apply are two in the sphere of maritime law: the 1952 Arrest Convention and the 1952 Collision Convention. Under the former, jurisdiction in relation to certain claims may be founded by the arrest of a ship; if this arrest takes place, Article 67 of the Lugano Convention will authorise the taking of jurisdiction. But it will still be necessary for jurisdiction actually to be taken as a matter of English law: jurisdiction in an admiralty action in rem in English law requires the claim form to be served. Arrest does not itself found jurisdiction in English law (nor is it a precondition for it), but it appears that it is the fact of arrest, in accordance with the Arrest Convention, which permits the court to exercise jurisdiction upon the basis of service of process, and to be permitted by Article 67 to do so.

Under the Collision Convention, jurisdiction in relation to certain claims may be asserted if the ship could have been arrested, but security is instead given for the claim. If this takes place, the Collision Convention permits the court to take jurisdiction, and to do so under the authority of Article 67 of the Lugano Convention. But once again, the claim form must be served before jurisdiction can be said to have been asserted.

The 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air provides for certain jurisdictions to be made available to a passenger with a claim against an air carrier; and these are not abridged by the Lugano Convention. Accordingly, a court called on to determine a claim covered by the Montreal Convention must assess its jurisdiction in accordance with the jurisdictional provisions of that convention.^[1] But where the passenger brings a claim for compensation under Regulation 261/2004, claiming a payment in respect of delay inflicted by the airline, this is obviously independent of the Montreal Convention, and is subject to the ordinary jurisdictional rules of the Lugano Convention.

The 2005 Hague Convention on Choice of Court Agreements

The European Union was and is party to the 2005 Hague Convention on Choice of Court Agreements, and as a consequence of that, the United Kingdom was a State for which the 2005 Convention was in force. After Completion Day the United Kingdom will be party to the 2005 Convention in its own right. So far as jurisdiction is concerned, the 2005 Convention can give jurisdiction to a chosen court and deny it to all others; and it can require a court to refuse jurisdiction in favour of a chosen court. If the United Kingdom does not accede to the Lugano Convention, the jurisdiction of its courts will be affected by the Hague Convention but not the Lugano Convention; in consequence, its details are mostly dealt with in Chapter 25.

However, if the United Kingdom does join or rejoin the Lugano Convention on or after Completion Day, it may find itself in a situation in which the two Conventions, Lugano and Hague, are not aligned. The effect of Article 67, set out above, is that the Lugano Convention will defer to the Hague Convention: it provides that it ‘shall not affect’ the Hague Convention. This does not mean, however, that the English court may then turn to the Hague Convention and ignore the Lugano Convention. For the Hague Convention also contains provision, of no small complexity, by which it defers to other conventions. Article 26 of the Hague Convention provides as follows:

(1 ) This Convention shall be interpreted so far as possible to be compatible with other treaties in force for Contracting States, whether concluded before or after this Convention. (2) This Convention shall not affect the application by a Contracting State of a treaty, whether concluded before or after this Convention, in cases where none of the parties is resident in a Contracting State that is not a Party to the treaty. (3) This Convention shall not affect the application by a Contracting State of a treaty that was concluded before this Convention entered into force for that Contracting State, if applying this Convention would be inconsistent with the obligations of that Contracting State to any non-Contracting State.

This paragraph shall also apply to treaties that revise or replace a treaty concluded before this Convention entered into force for that Contracting State, except to the extent that the revision or replacement creates new inconsistencies with this Convention. (4) This Convention shall not affect the application by a Contracting State of a treaty, whether concluded before or after this Convention, for the purposes of obtaining recognition or enforcement of a judgment given by a court of a Contracting State that is also a Party to that treaty. However, the judgment shall not be recognised or enforced to a lesser extent than under this Convention.

• (5) This Convention shall not affect the application by a Contracting State of a treaty which, in relation to a specific matter, governs jurisdiction or the recognition or enforcement of judgments, even if concluded after this Convention and even if all States concerned are Parties to this Convention. This paragraph shall apply only if the Contracting State has made a declaration in respect of the treaty under this paragraph. In the case of such a declaration, other Contracting States shall not be obliged to apply this Convention to that specific matter to the extent of any inconsistency, where an exclusive choice of court agreement designates the courts, or one or more specific courts, of the Contracting State that made the declaration.
• (6) This Convention shall not affect the application of the rules of a Regional Economic Integration Organisation that is a Party to this Convention, whether adopted before or after this Convention: (a) where none of the parties is resident in a Contracting State that is not a Member State of the Regional Economic Integration Organisation; (b) as concerns the recognition or enforcement of judgments as between Member States of the Regional Economic Integration Organisation.

The list of Hague States, as of 1 September 2020, is as follows: the Member States of the European Union; the United Kingdom (as Member State, but from 1 January 2021 as independent State); Singapore; Mexico; and Montenegro. The list does not include Iceland, Norway or Switzerland, which are States Party to the Lugano Convention but not to the Hague Convention.^[2]

The high-level, guiding principle is that where all the parties are resident in countries which are Hague+Lugano States, the Lugano Convention will apply and the Hague Convention will not. The thinking apparently is that if the only Hague States involved are also Lugano States, the Lugano Convention will apply, which makes some sense. It would appear to mean that if all the parties are resident only in Lugano States but there is an exclusive choice of court agreement for the courts of Singapore or Mexico, which are Hague States but not Lugano States, the agreement on choice of court will be given whatever effect the Lugano Convention gives it, which may be no effect at all. It is difficult to believe, though, that this would be correct. If there is a jurisdiction agreement for the courts of a non-Lugano, Hague, State, such as Singapore, it is hard to see why the English court should be expected to exercise (say) jurisdiction under Article 2 of the Lugano Convention and have no basis for giving effect to the choice of court agreement, simply because no party is resident in a state which is only a Hague State. The problem is that Article 67 of the Lugano Convention does not explicitly say that a court of a Lugano State which is bound by a particular convention, such as the 2005 Hague Convention, to not adjudicate may or must refuse to adjudicate, but that is surely how it should be read. However, it is more convenient to examine the Hague Convention, on its own terms, in Chapter 25, without the immediate distraction of the Lugano Convention.

Relationship between Lugano Convention and the Brussels Regulation

While the United Kingdom was a Member State and bound as such by the Lugano Convention, it was necessary for legislation to deal with the relationship between the Brussels Regulation and the Lugano Convention, in order to answer the question whether a particular issue was determined in accordance with the Regulation or the Convention. This remains an issue for the Lugano States which are also Member States; and the Lugano Convention spells out in a little detail whether (say) a French court dealing with a case which has some relevant connection to the United Kingdom should apply the Brussels I Regulation or the Lugano Convention to the proceedings before it. For the sake of the completeness of the picture, for example when an English defendant is sued before a French court, the demarcation lines are set by Article 64, which provides in material part as follows:

(1) This Convention shall not prejudice the application by the Member States [of the Brussels Regulation] ... (2) However, this Convention shall in any event be applied: (a) in matters of jurisdiction, where the defendant is domiciled in the territory of a State where this Convention but not [the Brussels Regulation] applies, or where Articles 22 or 23 of this Convention confer jurisdiction on the courts of such a State; (b) in relation to Us pendens or to related actions as provided for in Articles 27 and 28, when proceedings are instituted in a State where the Convention but not [the Brussels Regulation] applies and in a State where this Convention as well [the Brussels Regulation] applies ...

In other words, if the defendant has a domicile in only the United Kingdom, or Articles 22 or 23 point to the United Kingdom, the French court will apply the Lugano Convention. It will also apply the Lugano Convention to a situation of Us pendens in which one of the courts seised is that of the United Kingdom.

Conclusion

If the court has jurisdiction pursuant to a particular convention to which Article 67 applies, it may exercise that jurisdiction in accordance with the provisions of that particular convention, but it will be subject to the provisions of that particular convention, or (it seems) the Lugano Convention, as to Us alibi pendens. If no such convention applies, the next question in the hierarchy must be asked.

¹

If he has a domicile in France and in the United Kingdom, the French court will be correct to proceed on the basis that he has a domicile in a Member State. As Pocar puts it, the Lugano Convention will apply only if ‘the Regulation does not’: Pocar [2009] OJ C319/1, [20].

• [1] C-213/18 Guaitoli v easyjet Airline Co Ltd EU:C:2019:927. 2 Regulation (EC) 261/2004, [2004] OJ L46/1, which will be retained as UK law after Completion Day: The Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2019, SI 2019 No 278, reg 8. 3 See in particular C-204/08 Rehder v Air Baltic Corp [2009] ECR 1-6073; C-213/18 Guaitoli v easyjet Airline Co Ltd EU:C:2019:927; see further, Chapter 14, below. 4 Council Decision 2014/887/EU, [2014] OJ L353/5. The Convention took effect in the European Union under TFEU Art. 216(1). 5 The Report accompanying the Hague Convention explains at [276] that this will rarely happen. 6 The Report accompanying the Hague Convention refers to these as ‘give way' provisions.
• [2] A useful status table is maintained by the Hague Conference on its website: https://www.hcch.net/en/ instruments/conventions/status-table/?cid=98. 2 Though for whether that is really correct (and it is not, at least according to English lawyers), see Chapter 19 below.