When no court has jurisdiction under the Lugano Convention
This paragraph deals with hypothesis (E) from paragraph 31.08.
There are two kinds of case in which a dispute may arise in a civil or commercial matter but no court has jurisdiction according to the provisions of the Lugano Convention. These may be thought of as cases in which no court has jurisdiction, full stop; and cases in which no court has been seised with what would, if a court were seised, be jurisdiction under Article 4.
For the first case, in Van Uden, the Court of Justice accepted that the parties’ agreement to refer their differences to arbitration meant that, although the matter was a civil or commercial one, no State had jurisdiction over the substantive claim, at least once one party had invoked the arbitration agreement. There was therefore no court which, having jurisdiction over the merits of the case, could grant relief which went beyond the constraints of Article 31 of the Convention. Article 31 therefore applied to an application for provisional or protective measures: the court which granted relief was restricted to what that Article allowed it to do. No court could be seen as one with actual or potential jurisdiction so as to allow it to be argued that its powers were wider than those authorised by Article 31.
For the second case, by contrast, if the defendant has no domiciliary connection with a Lugano State, the case has no connection with a Lugano State, and there are no proceedings yet pending in a Convention State (though no jurisdictional reason why such proceedings could not be brought), the case is not on all fours with Van Uden. Indeed, if the case is one for which the Convention prescribes no initial jurisdictional limitation, it is difficult to see that it would impose any limitation upon the powers of any court to grant interim relief. Accordingly, in such a case the English court will be able to exercise its powers to grant relief without restriction. This conclusion is consistent with the approach taken by the Swiss Federal Tribunal in Uzan v Motorola Credit Corp (No 2),m where it described the English court in such a case as having ‘virtual jurisdiction’ in the case, and therefore having power to make orders which the Swiss courts would recognise under the provisions of the Lugano Convention.
When proceedings are in a 2005 Hague Convention State
This paragraph deals with hypothesis (F) from paragraph 31.08.
The first thing to say is that the Hague Convention makes no contribution, of any kind, to the question whether an English court should grant relief. Article 7 of the Hague Convention states as follows:
Interim measures of protection are not governed by this Convention. This Convention neither requires nor precludes the grant, refusal or termination of interim measures of protection by a court of a Contracting State and does not affect whether or not a party may request or a court should grant, refuse or terminate such measures.
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- 119 ATF/BGE 129111 626.
By contrast with the elegant simplicity of the Article, the way in which Section 25( 1) authorises the court to grant interim relief is tortured. The quick and short answer ought to be, and may well be, that as the powers given by Section 25(1) are available no matter the foreign court or the subject matter of the proceedings, of course it follows that the English court has power to grant relief in this case as well.
However, if one takes Section 25(1), as amended, seriously, it is a mess. According to Section 25(1), a statutory condition for the court to act is that the matter is within the subject-matter scope of the 2005 Convention as this is defined by Articles 1 and 2 of the Convention.[1] This makes sense, but Section 25(1 )(b) then adds that it is not necessary that the Convention have effect in relation to the proceedings. As to that, a matter is only within the subject-matter scope of the 2005 Convention, as defined by its Articles 1 and 2, if all of four conditions are met: the case arises in a civil or commercial matter; the case is international; the case is subject to an exclusive choice of court agreement, and the case is not on the list of excluded matters set out in Article 2 of the 2005 Convention. Now if these four conditions, defining the scope of the Convention, are all met, the only obvious reason why the 2005 Hague Convention might still not apply to the proceedings in the foreign court is that the exclusive choice of court agreement was concluded before the effective commencement date of the Convention, which would be very odd.
The practical solution is to observe that the court’s powers to grant relief are not limited by Section 25(1) as amended, for the order made under Section 25(3) gives the court power in all cases falling outside it, and that is enough.
- [1] Which means it is included by Art. 1, and not excluded by Art. 2, of the Convention: see further, Chapter 25. 2 Section 25(1) of the 1982 Act, as amended by SI 2015 No 1644. 3 Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997, SI 1997 No 302. 4 SI 1997 No 302, SI 2001 No 3929, Sch. 2, para. 10. 5 Excluding warrants for the arrest of property, or orders for the obtaining of evidence: Section 25(7).
