The Regulation

The Regulation (the Brussels I bis Regulation) deals with two key crossborder litigation issues, namely:
(1)the international jurisdiction of the courts
(2)the enforcement of foreign court judgments (beyond the scope of
this module)
To decide if the English courts have jurisdiction under the Regulation, we
must apply a three step test.
Does the Regulation apply?
o There must be an international element to the claim.
The international nature of the legal issue need not be
significant.
It might derive from the subject matter or domicile of a
party rather than the involvement of a number of
Member States.
o The claim must fall within the material scope of the
Regulation.
There must be a sufficient connection between the
claim and a Regulation Member State.
INDIVIDUALS: There will be a connection if the
defendant is domiciled in a Regulation Member
State. This is to be decided on the internal law of
that state. The Civil Jurisdiction and
Judgments Order 2001 governs the position in
the UK (must be resident in the UK and the
nature/circumstances of residence indicate a
substantial connection). An individual is generally
perceived as being resident in the UK if it is a
settled or usual place of abode which connotes
some degree of permanence or continuity. A
substantial connection is presumed to exist where
the individual has been resident in the UK for the
last 3 months or more. Where domicile is disputed
before the English courts, the burden of proof is on
the claimant to show a good arguable case that
the defendant was domiciled/resident at the time
the claim form was served.
COMPANIES: The domicile of a company is defined
in Article 63. It is where the company has its a)
statutory seat; or b) central administration; or c)
principal place of business. These are not all
concepts which are found in English company law.
The Regulation goes on to state that statutory
seat means the registered office or, where there
is no such office anywhere, the place of
incorporation/the place under the law of which the
formation took place.

PARTNERSHIPS: Article 63 refers to the domicile of

an association of natural or legal persons. The
domicile of such a body is stated as being the
place where it has its statutory seat, or central
administration, or principal place of business.
EXCLUSIVE JURISDICTION (Article 24): Recital 16
confirms that in addition to the defendants
domicile, there will also be a connection between
the claim and the Regulation Member States if the
exclusive jurisdiction rules apply. This rule is
designed to ensure that certain types of cases,
especially those tied to a particular jurisdiction,
are heard in that jurisdiction for practical reasons.
This provision will apply regardless of the domicile
of the parties. On this basis, the use of the
Regulation may be triggered even though the
defendant is not domiciled within a Regulation
Member State.
There may be a choice of jurisdiction (Article 25) if
there is a choice of jurisdiction clause in the
contract. For Article 25 to apply, the parties must
have agreed that the courts of a Regulation
Member State have jurisdiction to settle any
disputes arising in connection with their
relationship. For the purposes of Article 25, it does
not matter where the parties are domiciled.
It only applies to certain types of claim.
Article 1 provides that the Regulation applies in
civil and commercial matters whatever the
nature of the court or tribunal. Certain types of
claim are expressly excluded e.g. bankruptcy
proceedings or claims relating to wills and
succession.
What matters is the substance and not the form of
the particular claim. Where a single claim raises a
number of different issues, the question for the
court is whether the principal subject-matter of
the claim falls within one of the exceptions.
Civil and commercial matters should be
interpreted broadly. In contrast, the exclusions to
the Regulation should not be interpreted broadly.
When deciding upon the scope of these
exclusions, the court must look to connected
pieces of EU legislation in order to reach an
autonomous interpretation of EU law and,
consequently, a uniform application.
o The claim must fall within the temporal scope of the
Regulation.

The Regulation only applies as from a certain date. The

temporal scope is set out in Articles 66 and 81.
In summary, the Regulations rules on foreign
jurisdiction apply to legal proceedings instituted on or
after 10 January 2015.
In claims commenced before this date, the jurisdiction of
the English courts will be decided in accordance with
one of the other jurisdiction regimes applicable before
the English courts. The Common Law Rules, in
particular, apply as an ultimate fall back if none of
these other regimes apply.
Do the courts of England and Wales have jurisdiction under
the Regulation to determine the claim?
o There are several provisions in the Regulation which might
apply to determine that the courts of a particular country, or
countries, have jurisdiction to deal with the claim. Some of
these take priority over others. The order of priority of these
rules is an important factor in their application.
o Exclusive jurisdiction rules (Article 24) These take
priority over all the other rules giving a court jurisdiction.
On this basis, only the court(s) designated by Article 24
will have jurisdiction to hear the claim.
If the claimant commences proceedings in respect of
these claims before the courts of any other Regulation
Member State, such other courts must decline
jurisdiction. This is not dependent on the defendant
raising the issue and must be done of its own motion
Article 24 allocates exclusive jurisdiction over 5 specific
categories of case:
Land proceedings that have as their object rights
in rem in immovable property or tenancies of
immovable property situated in a Member State.
Validity of a company
Validity of entries in public registers
Patents, trade marks and designs
Enforcement of judgments

o The submission rules (Article 26)

Article 26 provides that the courts of a Regulation
Member State have jurisdiction where a defendant
enters an appearance unless that appearance is
entered to contest jurisdiction. The reference to
entering an appearance is to taking a step in the court
process. For the purposes of English court proceedings,
this will usually occur when the defendant acknowledges
service of the claim form/particulars of claim or files a
defence. Submission can be implicit and so a defendant

should be very careful in the way in which it corresponds

with a claimant.
If the defendant to the claim is considered to be a
weaker party (e.g. a consumer or an employee), the
Regulation rules on submission will not apply until the
weaker party defendant has been informed of its right
to contest jurisdiction and the consequences that will
arise if it enters (or does not enter) an appearance in
the proceedings (Article 26(2)).
There is s special box on an English acknowledgement
of service which a defendant must tick if it is
contesting the jurisdiction of the English courts. Failure
to follow this procedure might result in the defendant
impliedly submitting to the jurisdiction (CPR 10.1(3)(b)
and CPR 11).
If a defendant domiciled in a Regulation Member State is
sued before the courts of another Regulation Member
State which does not have jurisdiction under the
Regulation, the defendant may either:
plead to that the court has no jurisdiction under
the Regulation; or
submit to the jurisdiction by entering an
appearance.
o The choice of jurisdiction rule (Article 25)
The parties may agree that a particular court will have
jurisdiction to hear their dispute. Freedom of contract
and the freedom to choose jurisdiction is one of the
cornerstones of the Regulation; see recital 19.
However, a jurisdiction clause cannot override the
exclusive jurisdiction rules (under Article 24) and a
jurisdiction clause cannot override submission by a
party to the jurisdiction (under Article 26).
CONTRAVENTION: Article 31(2) sets out rules to deal
with the situation where a party commences
proceedings in another Regulation Member State in
contravention of a binding jurisdiction clause. The courts
must stay their proceedings as soon as the courts of the
correct Regulation Member State have been seised (i.e.
become involved by the defendant making an
application to it), pending a decision as to whether it
does have valid jurisdiction. The rationale for the rule is
explained in Recital 22.
Pursuant to Article 31(4), care should be taken
when dealing with consumer and employment
cases to ensure that (a) any choice of jurisdiction
agreement is binding and (b) the correct court has
accordingly been seised of the dispute.
o General rule (Article 4) provides that persons domiciled in
a Regulation Member State, whatever their actual nationality,

must be sued in the courts of that particular. Domicile is the

cornerstone of jurisdiction under the Regulation see recital
15. So if Articles 24, 25 and 26 do not apply, you will generally
fall back on this general rule.
o The special jurisdiction rules (Articles 7 & 8) these
provide alternatives to the general rule. They often provide a
choice to a claimant as to where it can commence
proceedings, if the exclusive jurisdiction, submission and
choice rules set out above do not apply. The rules cannot be
used against defendants who are not domiciled in the EU.
Contract (Article 7(1)) In matters relating to a
contract, a person domiciled in a Member State may be
sued in the courts for the place of performance of the
obligation in question.
For the sale of goods, the place of performance of
the obligation in question is the place where the
goods were delivered (or should have been
delivered).
For the provision of services, it is where the
services were provided (or should have been
provided).
Tort (Article 7(2)) In matters relating to tort, a
person domiciled in a Member State may be sued in the
courts for the place where the harmful event occurred or
ma occur.
The concept of where the harmful event occurred
has been expanded by case law. The harmful
event can be considered to occur in the country
where the tort was committed or in the country
where the damage was sustained.
Branch/Agency (Article 7(5) Can sue in the courts
for the place in which the branch, agency or other
establishment is situated if a dispute arises out of the
operations of that branch/agency or other
establishment.
Co-defendants (Article 8(1)) A person can be sued
in the courts where a co-defendant is domiciled,
provided that the claims are so closely connected that it
is expedient to hear and determine them together to
avoid the risk of irreconcilable judgments resulting from
separate proceedings.
Third parties (Article 8(2)) A person can be sued as
a third party in an action on a warranty or guarantee, or
in any other third party proceedings, in the court in
which the original claim mis pending.
Counterclaim (Article 8(3)) A counterclaim arising
from the same contract or facts as those on which the
original claim was based may be brought in the court in
which the original claim is pending.

o The weaker party exceptions As a general rule, the

weaker parties can only be sued in the Regulation Member
State in which they are domiciled. The stronger parties can
also be sued in the Regulation Member State in which the
weaker party is domiciled (or in the case of an employment
contract, where the employee carries out its work).
Insurance matters (beyond the scope of this course)
Consumer contracts Articles 17-19
Contracts of employment Articles 20-23
If so, can the courts of England and Wales actually accept
jurisdiction?
o Lis pendens (Article 29)
Where proceedings involving the same cause of action
between the same parties are brought in the courts of
different Regulation Member States, any court other
than the court first seised must, of its own motion, stay
its proceedings until such time as the jurisdiction of the
court first seised is established.
This article is designed to prevent parallel proceedings
before the courts of different Member States.
o Related actions: Article 30
Where related actions are pending in the courts of
different Regulation Member states, any court other
than the court first seised may stay its proceedings i.e.
it has a discretion.
As to what constitutes a related claim depends on the
individual circumstances of the case and the discretion
of the court which has been second seised.
Article 30(3) does, however, state that actions are
related where they are so closely connected that it is
expedient to hear and determine them together to avoid
the risk of irreconcilable judgments resulting from
separate proceedings.
Where the first action is pending at first instance, any
court other than the court first seised may also decline
jurisdiction if the court first seised has jurisdiction over
both of the actions in question and its law permits the
consolidation of these actions.
o The court first seised: Article 32
A court is deemed seised when:
The document instituting the proceedings is
received by the court, or
If it requires service before lodging with the court,
when it is received by the agent responsible for
service.
PROVIDED THAT the claimant then gets on with any
steps that it is required to undertake to effect such
service/lodging.

In relation to parties in Regulation Member States, the

English court will generally be deemed seised on the
issue of the claim form, although it is necessary to then
press on with service.

The Common Law Rules

If the Regulation (or any other non-examinable jurisdiction regime) does
not apply to your clients particular case, the court will apply the Common
Law Rules to decide whether or not it will have jurisdiction to hear the
dispute.
Under the Common Law Rules, the courts of England and Wales will have
jurisdiction over a foreign defendant in the following circumstances:
Presence where the proceedings are served on the foreign
defendant within the jurisdiction.
o Most commercial claims are categorised as being in
personam a claim brought against a person (whether
natural or legal), requiring that person to do or refrain from
doing a particular act. A central principle applying before the
courts of England and Wales is that those courts will, on the
whole, have jurisdiction over such natural or legal persons if
the English court proceedings can be validly served upon
them.
o Under the Common Law Rules, a foreign defendant will in
principle be subject to the jurisdiction of the courts of
England and Wales if the proceedings are served on
the defendant whilst they are within the jurisdiction.
Being within the jurisdiction may be permanent or it
could be temporary, as was established in the 1972
case of Maharanee of Baroda v Wildenstein.
Proceedings can be issued in England and Wales and
served on a common law defendant within the
jurisdiction, irrespective of (i) whether the defendant is
only within the jurisdiction temporarily; and (ii) the
degree of connection with England and Wales of the
defendant or the cause of action.
o The position with regard to the presence of companies and
partnerships becomes particularly complex.
In Dunlop v Actien-Gesellschaft, the defendant (a
company incorporated abroad) was held to be present in
the jurisdiction as a result of its presence at a trade fair
in Crystal Palace. Even though the company appeared at
the fair for only nine days, it was still deemed to have
been carrying on business in the jurisdiction and
capable of being served personally.
Bear in mind that a defendant might be cautious of
accepting service of a claim form and might even seek
to avoid such service. An interesting example of this is

demonstrated in Alexandre Yakovlevich Tseitline v

Leonid Victorovich and others.
o Forum conveniens If the defendant thinks it has been sued
in the wrong jurisdiction, they can seek to stay the
proceedings on the grounds that England and Wales is not the
natural forum. The burden of proof is on the party seeking the
stay i.e. the defendant. It is up to the defendant to show that
there is another court which is available to the claimant and
which is clearly or distinctly more appropriate for the trial of
the action.
Submission where the defendant submits to the jurisdiction of
the courts of England and Wales. There are two main ways in which
a defendant can submit to the jurisdiction of the court.
o Appointing an agent for service of process A foreign
defendant may be happy for the courts of England and Wales
to have jurisdiction. As a result, it may appoint a solicitor in
England and Wales to accept service on its behalf, and the
proceedings can then be served on that solicitor within the
jurisdiction. By doing this, the defendant is submitting to
jurisdiction.
o Appearing in the proceedings
Proceedings may be served on a foreign defendant
outside the jurisdiction, in breach of the Common Law
Rules. Nevertheless, a foreign defendant may appear in
the proceedings because it is happy for the case to
proceed in England and Wales, or because it does not
realise that the rules have been breached.
If the foreign defendant does appear in proceedings (by
taking a step in the proceedings, for example, by
serving a defence), it will have submitted to the
jurisdiction.
If a defendant does not wish to submit to jurisdiction, it
should not do anything more than (1) acknowledge
service within the appropriate time limit, indicating an
intention to dispute jurisdiction on the
acknowledgement of service and (2) apply under CPR 11
for a declaration that the English court lacks jurisdiction
to hear the dispute.
Appearing in the proceedings simply to contest
jurisdiction does not of itself constitute submission
Williams & Glyns Bank v AstroDinamico.
Permission The courts of England and Wales may give the
claimant permission to serve the proceedings on the foreign
defendant out of the jurisdiction (CPR 6.36). Any such application
for permission is like any other interim application. On this basis, an
application to serve a claim form abroad is made pursuant to CPR
23. There is a three step test to meet; if the requirements are
established then the courts may grant the applicant permission it
is discretionary.

o Step 1 Establishing a jurisdictional gateway

Necessary or proper party (6BPD 3.1(3) & (4))
6BPD 3.1(3) is used where a claim is made against
someone on whom the claim form has already been/will
be served and (a) there is, between the claimant and
that defendant, a real issue which it is reasonable for
the court to try; AND (b) the claimant now wishes to also
serve the claim form on another person who is also a
necessary or proper party to that original claim against
the defendant. 6BPD 3.1(4) is then used where a claim
is a Part 20 claim (i.e. an additional claim) and where
the person to be served with the claim form is a
necessary or property party to that claim.
Contract (6BPD 3.1(6) & (7)) (1) A claim is made in
respect of a contract, where (a) the contract was made
within the jurisdiction; (b) the contract was made by or
through an agent trading or residing within the
jurisdiction; (c) the contract is governed by English law;
or (d) the contract contains a term conferring
jurisdiction on the courts of England and Wales OR (2) a
claim is made in respect of a breach of contract
committed within the jurisdiction.
Tort (6BPD 3.1(9)) A claim is made in respect of tort
where: (a) the damage was sustained within the
jurisdiction; or (b) the damage sustained resulted from
an act committed within the jurisdiction.
o Step 2 Reasonable prospect of success
Pursuant to CPR 6.37(1)(b), the applicant must
demonstrate a reasonable prospect of success in the
cause of action in respect of which he seeks permission.
This is a relatively low threshold and has been equated
to the prospect of success needed to resist an
application for summary judgment De Molestina v
Ponton.
o Step 3 England and Wales is the proper place in which
to bring the claim
Step one (forum conveniens): The court may
consider many factors in deciding whether England is
the natural forum.
Residence or place of business of the defendant
Applicable law
Availability of witnesses
Local knowledge
Cost/delay/inconvenience of proceeding elsewhere
Step two: If England is not the natural forum, the court
will go on to apply the second test does substantial
justice require the case to be tried in England
anyway?

Is legal aid available in one jurisdiction but not in

the other?
Are there risks of assassination, trumped up
charges, lack of a fair trial or the risk of improper
government interference in a different jurisdiction?
See Deripaska v Cherney.
Spiliada Maritime v Cansulex is the leading case on
natural forum.

Effect on proceedings
Permission to serve Depending on which jurisdiction rules apply,
a claimant may or may not need permission from the court to serve
proceedings on a defendant outside the jurisdiction.
o No permission (CPR 6.33) If the regulation applies and the
English courts have jurisdiction to determine the claim, the
claimant will not need permission to serve the proceedings on
the defendant outside the jurisdiction.
o Permission (CPR 6.36 & 6.37) Under the Common Law
Rules, if the defendant is physically located outside the
jurisdiction at the time that it is sought to serve the
proceedings, permission will be needed.
o If a claimant is seeking to serve an English claim form abroad
without permission (i.e. under the Regulation), it must file
Form N510 when it issues and files its claim form (CPR
6.34). This essentially confirms to the court the basis upon
which it has jurisdiction over a foreign-domiciled defendant in
circumstances where the courts permission has not been
sought.
Extended periods for filing an acknowledgement of
service/defence apply to countries governed both by the Regulation
and the Common Law Rules.
o For Regulation Member States, the defendant has 21 days
after service of the particulars of claim to acknowledge service
or file a defence. If the defendant acknowledges service, it has
35 days after service of the particulars of claim to file a
defence (see CPR 6.35(3)).
o For Common Law countries, the periods are generally
longer. In essence, the more inaccessible the country is (in
terms of distance from the UK), the longer the period will be.
The defendant has the number of days referred to in the table
in 6BPD to either acknowledge service or file a defence. If the
defendant acknowledges service, the total period of time
within which it must then serve its defence is the number of
days listed in the table plus an additional 14 days.
Validity of process Where a claim form has validly been issued
under either the Regulation or the Common Law Rules, the period
for service is six months where the claim form is to be served
outside the jurisdiction (CPR 7.5(2)). This can be contrasted with the

situation where a claim form is to be served within the jurisdiction; it

is then normally valid for only four months.
Service abroad
Means of service There are a number of options set out in CPR
6.40, including the option to serve a claim form by any method
permitted by the law of the country in which it is to be served.
o Note: Nothing in CPR 6.40 or in any court order shall authorise
or require any person to do anything in the country where the
claim form is to be served which is against the law of that
country. In practice, therefore, you are likely to need to consult
lawyers in the country where you wish to effect service. If you
do not serve correctly, you might subsequently be unable to
enforce any judgment that you obtain.
Deemed date of service when serving an English claim form
abroad
o The deemed date of service rules (as contained in CPR 6.14 &
6.26) apply only to claim forms and other documents being
served within the jurisdiction and, since April 2011, within the
whole of the UK.
o Regulation (EC) No 1393/2007 on the service in the
Member States of judicial and extrajudicial documents
in civil or commercial matters (the EU Service
Regulation) The document will be deemed to be served on
the date on which the document is served in accordance with
the law of the relevant Member State.
o Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters
signed in The Hague on 15 November 1965 (the Hague
Service Convention) Pursuant to the Hague Service
Convention, documents are generally served via diplomatic or
judicial channels. In these circumstances, a certificate will be
issued. This will specify the date of service, based on the
particular method of service which has been used.