Agreements on jurisdiction

The provisions on jurisdiction agreements set out in Article 21 appear straightforward. An agreement on jurisdiction will be effective only if entered into after the dispute has arisen or if it allows the employee to bring proceedings in a court other than one indicated by the rules of the Section: that is, it widens his jurisdictional options, by providing that a court will have non-exclusive jurisdiction, rather than restricting them. As to the first of these, it can be difficult to identify the precise moment at which a dispute arose. The date of the fact which gave rise to the alleged breach of contract may help to identify it, though in English law it is the acceptance that the contract has been breached, rather than the wrongful conduct, which is decisive. The guidance offered by Jenard is that it is ‘as soon as the parties disagree on a specific point and legal proceedings are imminent or contemplated’, and the Court of Appeal preferred this formulation over the views of those who had had chance to reflect on it. Even so, the contemplation of legal proceedings comes well before their imminence, and the disagreement long before that; the guidance offered by Jenard does not add up to much. If a point has to be identified, it might be the first occasion on which the future claimant intimates to the defendant that there has been a breach of contract; but until a decisive ruling is obtained, all attempts to make sense of this aspect of the Article are really only guesses.

It had been held in Samengo-Turner v J&H Marsh & McLennan (Services) Ltd^[1] that Article 21 required the court to disregard an exclusive jurisdiction agreement, entered into before the dispute arose, for the courts of New York. That was perhaps surprising, as the most obvious purpose of Article 21 is to prevent a court in a Lugano State taking jurisdiction by reference to a jurisdiction agreement which does not conform to its requirements, and to prevent a court otherwise having jurisdiction under Section 5 of Title II being required to refuse it by reference to an agreement for the courts of another Lugano State. Insofar as the court had to decide whether it had jurisdiction under Section 5, the real issue in Samengo-Turner was whether a court with jurisdiction under the Convention may decline to exercise it on the ground that there was a material connection to a non-Lugano State. There could certainly be no objection in principle to a court, in considering whether to grant relief on the basis of an agreement for the courts of a non-Lugano State, taking into account the general structure of Article 21 as part of the background which should inform the exercise of its discretion.

But Article 21 does not specifically limit its impact to jurisdiction agreements for Lugano States. And in Mahamdia v People’s Democratic Republic of Algeria it was accepted that a jurisdiction agreement, entered into before the dispute arose, for the courts of a non-Lugano State would be effective for the purposes of Article 21 if it reflected Article 21(2) by widening the employee’s choice of court, but that it would not be effective if, by purporting to narrow that choice, it did not comply with it. After all. Article 21 gives effect to a jurisdiction agreement, but does not expressly limit its effect to jurisdiction agreements for the courts of a Lugano State. Accordingly, where the employee was protected by the jurisdictional rules of Section 5, that protection could be surrendered by agreement on jurisdiction, but only in accordance with Article 21. It follows that a non-exclusive jurisdiction agreement entered into before the dispute had arisen would be effective under Article 21, even if for the courts of a non-Lugano State; and it appears to follow that a jurisdiction agreement for the courts of a non-Lugano State, entered into after the dispute has arisen, will also be made effective by Article 21(1), even if exclusive. At least, there is nothing in Mahamdia v Algeria to suggest the contrary.

International jurisdiction in the courts of the United Kingdom

Where Section 5 of Title II confers international jurisdiction on the courts for a place, there will be no need for a further identification of the part of the United Kingdom in which the action may be brought. But where they confer international jurisdiction only on the courts of a Lugano State, and that State is the United Kingdom, internal rules of United Kingdom law are required to further identify the particular part of the

United Kingdom whose courts have national jurisdiction. These rules which have been made are very closely based on the provisions of Section 5, with the references being instead to a part of the United Kingdom.^[2]

Conclusion

If these provisions give the English court jurisdiction, service out (if needed) will be available as of right. If they deny jurisdiction to the English courts, that is the end of the matter. But if they are inapplicable, the next question must be addressed.

• [1] [2007] EWCA Civ 723, [2008] ICR 18. See [2007] LMCLQ 433. 2 C-154/11, EU:C:2012:491, [2013] ICR 1, [65]. 3 It did not say whether the same would be true if the agreement were proposed to be validated by Art. 21(1), but there is no reason to doubt it for the language of Art. 21 is not restricted to agreements for the courts of Lugano States, at least on the face of it.
• [2] See Chapter 20, below. 2 CPR r. 6.33.