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Pragmatism Rules

Published online by Cambridge University Press:  17 January 2008

Look Chan Ho
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Article 6(1) of the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters set out in Schedule 3C to the Civil Jurisdiction and Judgments Act 19821 provides that “[a] person domiciled in a Contracting State may also be sued where he is one of a number of defendants, in the courts for the place where any one of them is domiciled”. The House of Lords in Canada Trust Company v. Stolzenberg (No. 2)2 decided that first, in an action where jurisdiction is asserted under Article 6(1), the relevant standard of proof on the domicile issue is that of a “good arguable case” second, the correct date for determining if the anchor defendant3 is domiciled in England is the date of the issue of proceedings against the anchor defendant; and third, Article 6(1) does not require service on the anchor defendant prior to issue or service of proceedings against other defendants.

Information

Type
Research Article
Information
International & Comparative Law Quarterly , Volume 50 , Issue 3 , July 2001 , pp. 632 - 642
Copyright
Copyright © British Institute of International and Comparative Law 2001

Footnotes

*

BA, BCL (Oxon), LLM (Cantab), LLM (NYU); Freshfields Bruckhaus Deringer, London. I am extremely grateful to Iain Pester and Nicholas Holmes for their invaluable comments on earlier drafts of this note which saved me from many errors. The usual caveat applies.

References

1. It is to be noted that the European Court of Justice (ECJ) has no jurisdiction to interpret the Lugano Convention. In order to achieve uniformity, Protocol 2 on the Uniform Interpretation of the Lugano Convention provides that the courts of each Contracting State shall, when applying and interpreting the provisions of the Convention, pay due account to the principles laid down by any relevant decision delivered by the courts of other Contracting States concerning provisions of the Convention. Furthermore the cases interpreting the Brussels Convention set out in Schedule 1 to the Civil Jurisdiction and Judgments Act 1982 are highly relevant to the interpretation of the Lugano Convention, as the two Conventions are to all intents and purposes identical in terms.

2. [2000] 3 W.L.R. 1376.Google Scholar

3. For the purposes of this note, “anchor defendant” is taken to mean the defendant domiciled in the State of the courts in which the proceedings are brought and on whose domicile the jurisdiction under Art. 6(1) over other foreign defendants depends.

4. Now CPR, r.6.20(3).

5. [1998] 1 W.L.R. 547.Google Scholar

6. [1994] 1 A.C. 438.Google Scholar

7. Now CPR, r.6.20.

8. [1988] E.C.R. 5565.

9. See also Dubai Bank Ltd v. Abbas [1998] Lloyd's Rep. Bank 230 where the Court of Appeal applied the “good arguable case” standard to the question whether at the relevant time the defendant was domiciled in England so that the matter came within Ord. 11, r.l(l)(a). Similarly in Haji-Ioannou v. Frangos [1999] 2 Lloyd's Rep. 337 the Court of Appeal applied the “good arguable case” standard to the concept of domicile in Arts 2 and 4 of the Convention.

10. See, for example, Tesam Distribution Ltd v. Schuh Mode Team GmbH [1990] I.L.Pr. 149 and Molnlycke AB v. Procter & Gamble Ltd (No. 4) [1992] 1 W.L.R. 1112.Google Scholar

11. Now CPR, r.6.20(5).

12. [1994] 2 Lloyd's Rep. 87.

13. [1997] 1 W.L.R. 351.Google Scholar

14. See the Court of Appeal decision, [1998] 1 W.L.R. 547, 562.Google Scholar

15. Art. 21 provides that “[w]here proceedings involving the same cause of action and between the same parties are brought in the courts of different Contracting States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established”.

16. See Dresser UK Ltd v. Falcongate Freight Management Ltd, The Duke of Yare [1992] Q.B. 502 and Neste Chemicals SA v. DK Line SA, The Sargasso [1994] 3 All E.R. 180.

17. [1984] E.C.R. 2397.

18. CPR, 7PD—003.

19. [1999] 1 A.C. 119.Google Scholar

20. Although the wording of CPR, rr.6.20 and 6.21, which now govern the principles on service out of the jurisdiction, differs slightly from Ord. 11, it is safe to assume that the principles established by the case-law interpreting Ord. 11 will remain the same.

21. [1987] A.C. 460.

22. See Cleveland Museum of Art v. Capricorn Art International SA [1990] 2 Lloyd's Rep. 166 and E I Du Pont de Nemours & Co v. Agnew and Kerr [1987] 2 Lloyd's Rep. 585.

23. At p.1386.

24. [1999] 1 A.C. 119, 131–132.Google Scholar

25. At p.1390.

26. [1998] 1 W.L.R. 547, 571.Google Scholar

27. [1998] 1 W.L.R. 547, 572.Google Scholar

28. At p.1381.

29. Cheshire and North's Private International Law (13th ed., 1999), pp.254–255.Google Scholar

30. “[O]penly” because, as pointed out above, the House of Lords' rejection of the date of service rule was based on the express premise that “seisin” is conceptually distinct from “suing”.

31. At p.1385.

32. [1994] E.C.R. 1–5439.

33. [1995] 1 Lloyd's Rep. 374.

34. [1996] 1 Lloyd's Rep. 7.

35. See Fox v. Taher [1999] I.L.Pr. 441, 445, per Brooke LJ, and Glencore International AG v. Metro Trading International Inc [1999] 2 Lloyd's Rep. 632.

36. Grupo Torras [1996] 1 Lloyd's Rep. 7, 21, per Stuart-Smith LJ.

37. See Zelger v. Salinitri (No. 2), [1984] E.C.R. 2397.

38. Kleinwort Benson Ltd v. Glasgow City Council [1997] 3 W.L.R. 923, 938, per Lord Nicholls.Google Scholar

39. The Sargasso [1994] 2 Lloyd's Rep. 6,9, per Steyn LJ.

40. Ibid. at pp.9–10.

41. See Gubisch Maschinenfabrik KG v. Palumbo [1987] E.C.R. 4861 and The Tatry [1994] E.C.R. 1–5439.

42. Dresser UK Ltd v. Falcongate Freight Management Ltd, The Duke of Yare [1992] Q.B. 502, 523, per Bingham LJ.

43. It is interesting to note that Professor Kaye in his Law of the European Judgments Convention (1999) referred to the position in France where “date of seisin of French courts for Article 21 is the date when a copy of the writ is filed at the court's registry under Article 857 New Code of Civil Procedure, not date of service of writ”, at p.2795.