The seat of the company for the purpose of Article 22(2)

To determine where a company has its seat for the purpose of this provision, Article 22(2) tells the court to apply its rules of private international law. Though the Convention[1] contains an autonomous definition by which to determine where a company, other legal person, or association of natural or legal persons, has its domicile, the provisions of Article 22(2) specify that exclusive jurisdiction is conferred upon the courts of the State of the seat, not the domicile; and the two must not be confused.

The definition of ‘seat’, for the purpose of this exclusive jurisdictional rule in Article 22(2) of the Lugano Convention, was provided by Civil Jurisdiction and Judgments Act 1982, Section 43A. According to this definition, a company or association has its seat in the United Kingdom if, and only if, it was incorporated or formed under the law of part of the United Kingdom, or its central management and control is exercised in the United Kingdom. A corporation or association has its seat in another Lugano State only if it was incorporated or formed under the law of that State, or its central management and control is exercised from that State; but it will not have its seat in that Lugano State if it was incorporated or formed under the law of the United Kingdom, or the courts of the Lugano State in question would not regard it as having its seat there for the purposes of Article 22(2).

Company with seat in the United Kingdom

As Article 22(2) of the Convention allocates international jurisdiction to the courts of the United Kingdom, it is for the internal law of the United Kingdom to pinpoint the local law district having such internal or national jurisdiction. Accordingly, exclusive jurisdiction is given to the part of the United Kingdom in which the company, legal person or association has its seat. It has its seat in a particular part of the United Kingdom if and only if it has its seat in the United Kingdom and was incorporated or formed under the law of that part, or being incorporated or formed under the law of a State other than the United Kingdom, its central management and control is exercised in that part. But if it was incorporated or formed under an enactment forming part of the law of more than one part of the United Kingdom, or under an instrument having effect in the domestic law of more than one part of the United Kingdom, it shall, if it has a registered office, be taken to have its seat in the part of the United Kingdom in which that office is situated, and not in any other part.

Validity of entries in public registers in Lugano States: Article 22(3)

Article 22 of the Convention continues:

The following courts shall have exclusive jurisdiction, regardless of domicile:

(3) in proceedings which have as their object the validity of entries in public registers, the courts of the State bound by this Convention in which the register is kept;

Article 22(3) of the Convention calls for little elaboration. In the context of the original Brussels Convention, Jenard said[2] that what is now Article 22(3) will apply mainly to land registers and commercial registers. It may be asked why this provision was not tested in Schmidtwhere the element of the claim which sought correction of the land register was held to be within Article 22(1), although it made no difference to the outcome of the case. It may have been that there was nothing invalid about the original entry on the register: the proceedings which sought rescission of a gift sought to pave the way for one valid entry to be replaced by another one; to put it another way, if the alteration of the register entry will simply be the consequence of a decision taken on separate grounds, the proceedings will not fall within the scope of the Article. But if the impugned gift was void rather than voidable, then the register entry was presumably invalid because the wrong person had been recorded as proprietor, and the Article may then apply to the proceedings to rectify the register.

It seems improbable that Article 22(3) can apply in a case in which the claim is founded on a contention that the defendant owes a personal obligation to the claimant to take steps to bring about a change to an entry on the register which was unquestionably valid when made but which should now be altered to reflect a subsequent change in circumstances, such as the bankruptcy of the registered proprietor. It has been held that a register maintained by a public limited company which is open to public inspection is a public register for the purposes of this provision.

  • [1] Article 60. 2 Note that the definition of domicile in Art. 60 makes references to a ‘statutory seat’, which is a different concept. 3 On central management and control, see The Deichland [1990] 1 QB 361; The Rewia [1991] 2 Lloyd’s Rep 325; Latchin v General Mediterranean Holidays SA [2002] CLC 330; Royal & Sun Alliance Insurance Pic v MK Digital FZE (Cyprus) Ltd [2006] EWCA Civ 629, [2006] 2 Lloyd’s Rep 110; Vava v Anglo America South Africa Ltd [2013] EWHC 2131 (QB). 4 Civil Jurisdiction and Judgments Act 1982, Sch. 4, r. 11(b). 5 Civil Jurisdiction and Judgments Act 1982, Section 43.
  • [2] [1979] OJC59/1,35. 2 C-475/15, EU:C:2016:881, [2017] ILPr 127. Likewise, C-630/17 Milivojevic v Raiffeisenbank St. Stefan-Jagerberg- IVoljsberg eGen EU:C:2019:123. 3 See, for a similar approach, Marriott v Fresson [2020] EWHC 2515 (Ch), [60]. 4 Ashurst г Pollard [2001 ] Ch 595; also Re Hayward [ 1997] Ch 45. It may be that the reasoning in these early decisions needs to be reappraised in the light of later judgments from the Court. 5 Re Fagin's Bookshop pic [1992] BCLC 118 (register of shareholders). In Re Zavarco Pic [2015] EWHC 1899 (Ch), [2016] Ch 128 the court did not need to decide the point. See also Marriott v Fresson [2020] EWHC 2515 (Ch). 6 Civil Jurisdiction and Judgments Act 1982, Sch. 4, rule 11(c).
 
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